Sage v. Riggs
| Decision Date | 26 April 1864 |
| Citation | 12 Mich. 313 |
| Court | Michigan Supreme Court |
| Parties | Marie J. Sage v. Alida Riggs and others |
Heard April 21, 1864
Appeal in chancery from Wayne Circuit.
The bill was to foreclose a mortgage executed by two of the defendants to complainant, to secure the payment of a bond for $ 2,500. The mortgage empowered the mortgagee, in the usual manner, on default being made in the condition of the mortgage, to sell and convey the mortgaged premises, and from the proceeds thereof to retain the amount due her "rendering the surplus moneys, if any there be, to the said parties of the first part, their heirs, executors or administrators, after deducting the costs and charges of such vendue and sale aforesaid, and also one hundred dollars as an attorney fee, should any proceedings be taken to fore-close this indenture."
On a reference to a Circuit Court Commissioner to report the amount due on the bond and mortgage, the complainant claimed that the attorney's fee of $ 100 should be included in the sum due; and the commissioner reported accordingly. The Circuit Court, however, disallowed this item, and granted decree for complainant, for the debt only. Complainant appealed.
Decree affirmed with costs.
H. M Cheever, for complainant.
Walker & Kent, for defendants.
Manning J.:
The error complained of in this decree is the non-allowance of $ 100 attorney's fee for foreclosing the mortgage, provided for in the power of sale. It is insisted complainant is entitled to the $ 100, whether the foreclosure is in chancery, or at law by advertisement and sale under the power. It is not in a separate clause of the mortgage standing by itself and providing a fee for foreclosing the mortgage generally, but in the power of sale of which it is a part. The language of the power is, "rendering the surplus moneys, if any there be, to the parties of the first part, their heirs, executors or administrators, after deducting the costs and charges of such vendue and sale aforesaid, and also one hundred dollars as an attorney fee, should any proceedings be taken to foreclose this indenture." The meaning of the words, "should any proceedings be taken to foreclose this indenture" relied on by appellant, is easier asked than answered--nor is it necessary to decide. For they must be understood and construed with reference to the subject matter of the power, that is, a foreclosure by advertisement and sale of the...
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Conway v. Skidmore
...805; Wright v. Market Bank, (Tenn.) 60 S.W. 623, 629; Fowler v. Equitable Trust Co., 141 U.S. 384, 407, 35 L.Ed. 786, 12 S.Ct. 1; Sage v. Riggs, 12 Mich. 313. judgment will be reversed and the case remanded with instructions to enter a judgment consistent with the above views and supported ......
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Griffin v. Johnson
... ... at law an attorney fee may be exacted, no such exaction can ... be made if the foreclosure is in equity: Sage v ... Riggs 12 Mich. 313; Hardwick v. Bassett 29 ... Mich. 17; VanMarter v. McMillan 39 Mich. 304; ... Vosburgh v. Lay 45 Mich. 455, 8 N.W. 91; ... ...
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Kittermaster v. Brossard
...N.W. 91; Millard v. Truax, 47 Mich. 251; 10 N.W. 358; Id., 50 Mich. 343, 15 N.W. 501; Kennedy v. Brown, 50 Mich. 336, 15 N.W. 498; Sage v. Riggs, 12 Mich. 313; Hardwick v. Bassett, 29 Mich. 17; Damon Deeves, 62 Mich. 469, 29 N.W. 42; Louder v. Burch, 47 Mich. 111, 10 N.W. 129; Botsford v. B......
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American Freehold Land Mortg. Co. of London v. McCall
...to the power. Such was the character of the right in the following cases: Bynum v. Frederick, 81 Ala. 489, 8 South. Rep. 198; Sage v. Riggs, 12 Mich. 313; Hardwick v. Bassett, 29 Mich. 17. Second. Where right to claim such fees may be exercised either upon a foreclosure under the power of s......