Vosburgh v. Lay
| Decision Date | 28 January 1881 |
| Citation | 45 Mich. 455,8 N.W. 91 |
| Court | Michigan Supreme Court |
| Parties | VOSBURGH and others v. LAY. |
A stipulation in a mortgage, as the statute now stands, for a gross allowance for attorney's fees, in case of foreclosure, differing from that authorized by statute, is not binding.
Error to Allegan.
Pope & Hart, for plaintiffs in error.
Padgham & Padgham, for defendant.
The plaintiffs were owners of the equity or redemption of certain premises on which the defendant foreclosed a mortgage by proceedings under the statute. The mortgage provided that an attorney fee of $50 should be allowed in case of proceedings taken to foreclose.
The defendant bid in the premises and the attorney fee of $50 was included in the sum bid. The mortgage debt carried interest at 10 per cent. The sheriff executed a deed and indorsed the time when it would become operative, and on the last day of the time given for redeeming the plaintiffs offered the defendant for the purpose of effecting redemption the full amount for which the premises were sold, together with the costs of sale and interest thereon at 10 per cent. less the attorney fee of $50 and interest thereon. They also offered to pay $25 as an attorney fee by way of compromise if the defendant would accept it and allow redemption. The defendant refused to accept less than the entire amount bid and interest thereon at 10 per cent. The plaintiffs then informed defendant that they would pay the attorney fee to the register of deeds under protest and then sue him, the said defendant, to recover it back. They accordingly deposited the attorney fee and interest on it in one package and the residue in another package with the register of deeds for the purpose of redeeming from the mortgage sale, and they accompanied such deposit with a written protest that the attorney fee and interest thereon were paid to effect redemption and were claimed to be an illegal exaction. The defendant took the money from the register and received with it said protest. The plaintiffs thereupon brought this suit to recover back the amount of the attorney fee and interest and the circuit judge after finding tile facts entered judgment for defendant.
The case is governed by the principle laid down in Myer v Hart, 40 Mich. 517, and recognized in Parke v Allen, 42 Mich. ----. No court is vested with authority to draw a line and decide that the fee specified in one mortgage is...
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