Webber v. Ramsey

• Decision Date: 10 April 1894
• Citation: 100 Mich. 58,58 N.W. 625
• Court: Michigan Supreme Court
• Parties: WEBBER v. RAMSEY.

58 N.W. 625

100 Mich. 58

WEBBER v. RAMSEY.

Supreme Court of Michigan

April 10, 1894

Error to circuit court, Ionia county; Vernon H. Smith, Judge.

Trespass on the case by John A. Webber against Robert Ramsey. Judgment for plaintiff. Defendant appeals. Affirmed.

George E. Nichols and F. D. M. Davis, for appellant.

William O. Webster, for appellee.

LONG J.

September 16, 1885, Levi Shotwell and wife executed a mortgage to the plaintiff for $7,000, with interest at 7 per cent., payable annually. The mortgage covered 254 acres of land, and was recorded in the office of the register of deeds on the day of its execution. The mortgage contained an interest clause providing that, should any default be made in the payment of the interest, or any part thereof, on any day when payable, and the same should remain unpaid for 20 days the principal, with all arrearages, should, at the option of the holder of said mortgage, become due and payable. September 16, 1889, Shotwell made default in payment of the annual installment of interest. October 21 1889, defendant in this suit purchased from Shotwell the timber on 12 acres of the mortgaged land, paying $225 therefor, and taking a bill of sale of said timber from Shotwell. At the time of this purchase the defendant had no actual knowledge of the plaintiff's mortgage, though it was of record, but he was informed of it before he entered upon the land and cut and removed the timber. October 24th of that year, Shotwell made a common-law assignment of all his property to Laban A. Smith, and on the final settlement of that estate it paid only .0148 per cent. on a dollar of his unsecured indebtedness. October 26th defendant saw Shotwell and ascertained that he had made such an assignment. He then called upon the assignee to get his permission to cut the timber, and was advised by him that the plaintiff would be injured by the cutting of the timber. On Sunday, October 27th, defendant entered upon this 12 acres with a force of men, and commenced to cut the timber. While proceeding with this work, and on November 1st, the plaintiff exercised his option under the interest clause in his mortgage, and commenced a suit in the circuit court for the county of Ionia, in chancery, to foreclose the mortgage, and made Shotwell and his wife, the assignee, and the defendant herein defendants in that suit. An injunction was allowed by the court, restraining the defendant from cutting or removing the timber in question, but it was afterwards modified, and the defendant allowed to remove the timber already cut, but restraining him from any further cutting. Subsequently, the plaintiff in the foreclosure suit, by a stipulation between the solicitors, and the order of the court thereon, dismissed his bill of complaint as to defendant Ramsey without prejudice, and thereupon the suit proceeded to a decree against the other defendants. The decree of foreclosure was for $8,163, and dated December 22, 1890. On February 21st following, the premises were sold under said decree, and struck off to the plaintiff here for $6,500, he being the highest bidder, and that being the highest sum offered for them. The circuit court commissioner made the sale, reporting a deficiency of $1,837.84, and the sale was duly confirmed. No execution was ever issued for the collection of this deficiency.

This action was brought by the plaintiff to recover from defendant Ramsey the value of the timber taken from the land. The cause was heard before the court without a jury, and the court made findings of fact and law, and entered judgment for plaintiff for $300, finding that sum to be the value of the timber taken. The court found as fact that the trees and timber standing and growing upon the mortgaged premises constituted a valuable part of the security for said mortgage indebtedness, and...