Powers v. Golden Lumber Co.
| Decision Date | 30 April 1880 |
| Citation | 5 N.W. 656,43 Mich. 468 |
| Court | Michigan Supreme Court |
| Parties | POWERS v. GOLDEN LUMBER COMPANY and others. |
A mortgagee, whose claim was not due, in order to protect his security was obliged to redeem from a prior lien. Afterwards he filed a bill to enforce his right to reimbursement, and also for foreclosure of his mortgage His mortgage debt was paid after the bill was filed. Held, that he was entitled to a decree for enforcement of the lien for redemption money paid.
Appeal from Oceana, in chancery.
Smith Mims, Hoyt & Erwin, for complainant.
W.E. Ambler and R.A. Montgomery, for defendants.
Powers filed a bill for the purpose of enforcing his rights to reimbursement under the redemption of a mortgage, and also to enforce a mortgage of his own against the defendants, who were subsequent encumbrancers and purchasers. Powers held a mortgage on which, at the date when his bill was filed, there were no arrearages, but an instalment was to become due on the first of November, 1877 the bill being filed October 11, 1877. A previous mortgage covering the lands on which he held his security had been foreclosed under the statute in 1876, and the time of redemption would have run out July 15, 1877. Powers redeemed this on the sixth of July, 1877.
After his bill was filed his mortgage was paid, and he discharged it. But, inasmuch as no payment was made beyond this, he procured a decree for the enforcement of his lien for the redemption money paid, to get rid of the statutory foreclosure.
An appeal is taken from this decree on the grounds--First, that the bill was prematurely filed; and, second, that the discharge of his mortgage cut off his lien for the redemption money. Both of these claims are put on the same basis, which is the assertion that the lien for the redemption money was a mere appurtenance to the mortgage, and not an independent or separate equity. This view is not, in our opinion, entitled to any weight. The principles underlying the rights of parties in mortgage matters are too elementary to require extended consideration. Any one who has any interest whatever in the mortgaged premises, or in any part of them, whether absolute or qualified, has a right of redemption, and must if he redeems at all, redeem completely.
If Powers had, instead of holding a mortgage on all the land been absolute owner of a part of the tract regularly sold as an entirety, he could not, under the statute, have redeemed less than some entire parcel sold separately on the foreclosure, but he would have had a right to redeem the whole, and enforce his lien on so much of the parcel as he did not previously own. In such a case it is obvious that his title to reimbursement for the payment beyond what protected his own share could not depend on what he should subsequently do with his original estate. While a sale on statutory foreclosure satisfies the debt secured by the foreclosed...
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