Caruthers v. Hall

Michigan Supreme Court

Caruthers v. Hall

10 Mich. 40, 1862 Mich. LEXIS 23

CourtMichigan Supreme Court

DecidedApril 22, 1862

StatusPublished

Cited by5 cases

This text of 10 Mich. 40 (Caruthers v. Hall) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Caruthers v. Hall, 10 Mich. 40, 1862 Mich. LEXIS 23 (Mich. 1862).

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Opinion

Campbell J.:

The bill in this ease was filed to foreclose a mortgage made by Wellington Johnson and wife to complainant. Hall, who is a subsequent purchaser, answered, showing that the mortgagor had conveyed a part of the mortgaged premises to one Lucina Redson subject to the entire mortgage, which the deed declared she was to pay, and that his own purchase was made subsequently. He claimed that in decreeing a sale the Court below should require the portion of the land sold to Mrs. Redson to be first offered, and that his portion should only be resorted to in case of deficiency. The evidence shows without contradiction that a sale in this order would not prejudice complainant. The Court below declined to protect his priority, and Hall appealed.

There can be no doubt of the right of the defendant Hall to have this course taken. The case of. Mason v. Payne, Wal. Ch. 461, fully settles the doctrine, which is a very familiar and reasonable one. The objection that a cross bill was necessary, is not well taken. The defendant does not seek any affirmative relief, neither does he seek to deny or destroy any right of the complainant, to whom, upon the case as presented, the order in which the parcels are sold must be a matter of .indifference.

The decree of the Court below must be so modified as to require the sale of Hall’s premises to be postponed, so that the remainder be first offered and sold. The appellant is entitled to the costs of this Court, but not of the Court below.

The other Justices concurred.

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Campbell J.:

The bill in this ease was filed to foreclose a mortgage made by Wellington Johnson and wife to complainant. Hall, who is a subsequent purchaser, answered, showing that the mortgagor had conveyed a part of the mortgaged premises to one Lucina Redson subject to the entire mortgage, which the deed declared she was to pay, and that his own purchase was made subsequently. He claimed that in decreeing a sale the Court below should require the portion of the land sold to Mrs. Redson to be first offered, and that his portion should only be resorted to in case of deficiency. The evidence shows without contradiction that a sale in this order would not prejudice complainant. The Court below declined to protect his priority, and Hall appealed.

There can be no doubt of the right of the defendant Hall to have this course taken. The case of. Mason v. Payne, Wal. Ch. 461, fully settles the doctrine, which is a very familiar and reasonable one. The objection that a cross bill was necessary, is not well taken. The defendant does not seek any affirmative relief, neither does he seek to deny or destroy any right of the complainant, to whom, upon the case as presented, the order in which the parcels are sold must be a matter of .indifference.

The decree of the Court below must be so modified as to require the sale of Hall’s premises to be postponed, so that the remainder be first offered and sold. The appellant is entitled to the costs of this Court, but not of the Court below.

The other Justices concurred.

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Bluebook (online)

10 Mich. 40, 1862 Mich. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caruthers-v-hall-mich-1862.

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