Grand River Avenue Christian Church v. Berkshire Life Insurance

236 N.W. 881, 254 Mich. 480, 1931 Mich. LEXIS 961
CourtMichigan Supreme Court
DecidedJune 1, 1931
DocketDocket No. 73, Calendar No. 35,513.
StatusPublished
Cited by7 cases

This text of 236 N.W. 881 (Grand River Avenue Christian Church v. Berkshire Life Insurance) 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
Grand River Avenue Christian Church v. Berkshire Life Insurance, 236 N.W. 881, 254 Mich. 480, 1931 Mich. LEXIS 961 (Mich. 1931).

Opinion

Butzel, C. J.

On November 27, 1925, plaintiff, a corporation organized for ecclesiastical purposes under the laws of this State, borrowed from defendant Berkshire Life Insurance Company, a Massachusetts corporation, the sum of $75,000 to complete the construction of a new church building and stores attached thereto. In order to secure the loan, plaintiff gave defendant a mortgage on the property on which the building under construction, the old church building, an oil station, etc., were situated. Its description is as follows:

*482 “Lots numbered one (1), two (2), three (3) and four (4) of Allendale Subdivision of the southerly ten (10) feet of lot four (4) and lots seven (7), eight (8), eleven (11) and.twelve (12) of Tireman’s Subdivision of part of lot five (5) of Subdivision of quarter sections 50, 51 and 52, Ten Thousand Acre Tract and fractional section 3 town two (2) south range 11 east, Greenfield, according to the plat thereof recorded in the office of the register of deeds for said county of Wayne in liber 23 of plats on page 70, said premises being- located in the city of Detroit, Wayne county, Michigan.”

The mortgage contained the usual power of sale in the event of default in payments. Plaintiff defaulted in its payments and foreclosure proceedings by advertisement were instituted. On November 12, 1928, the premises were sold as an entirety to defendant for the amount due on the mortgage. Exactly one year later, on the last day of redemption from sale, plaintiff filed a bill asking that the foreclosure proceedings be set aside and the sale held for naught. Plaintiff claims it is entitled to the relief sought, because (a), there was no service of notice of foreclosure on the occupants of the premises as provided for by the law in force at the time the mortgage was given; and (b), the property was not sold in separate parcels but as an entirety.

(a) At the time of the execution of the mortgage, the statute providing for foreclosure by advertisement (Act No. 383, Pub. Acts 1925), required personal or registered mail service of the notice of foreclosure upon occupants of the mortgaged premises. This act was approved May 27,1925, and went into effect August 27, 1925, two months prior to the execution of the mortgage. The act, however, was short-lived and was repealed at an extra session of the legislature by Act No. 16, Pub. Acts 1926, which, according to its provisions, took immediate effect. *483 The sole purpose of this act was to repeal Act No. 383, Pub. Acts 1925, and in referring to it, provided that:

“Any proceedings to foreclose a mortgage since said act became effective shall not be held invalid because of failure to comply with any provision thereof.”

Plaintiff asserts that, notwithstanding said repealing act, it was nevertheless absolutely necessary to comply with the provisions of the repealed act in order to foreclose a mortgage given while said act was in full force and effect; that said Act No. 383, supra, gave a substantive right to mortgagors in providing that occupants of premises must be duly served either personally or by registered mail with notice of foreclosure sale 30 days before the date of the sale. It is admitted that no such notice was given. The record shows that plaintiff was duly advised by numerous letters that foreclosure proceedings were about to be begun, and later was informed when the equity of redemption would expire. Plaintiff does not claim surprise, lack of knowledge, or any fraudulent conduct on the part of the defendant. It insists, however, that foreclosure by advertisement is a harsh remedy provided by statute and that any deviation from the prescribed procedure at the time the mortgage is given vitiates the entire proceedings; that the right to be informed by service of the notice of foreclosure proceedings is a substantial one that accrued at the time that the mortgage was given and that such right could not be abrogated by statute; and that in taking away this right, the repealing statute was unconstitutional in that it deprived plaintiff of its rights without due process of law, impaired the obligation of the contract, and was an ex post facto law. The procedural change,in doing away with service of notice *484 made a change in the remedy but did not deprive plaintiff of any substantial right. The foreclosure proceedings were legal and proper. It was not necessary to follow the provisions of the repealed law in regard to the remedy.

Plaintiff relies mainly on the case- of Cargill v. Power, 1 Mich. 369. In that case, the legislature sought to cut down the time of equity of redemption from two years to one year, and it was held that this could not be done so as to effect the foreclosure of a mortgage executed prior to the time that the act became effective. In the instant case, however, the change was merely in procedure. No rights have been taken away from- plaintiff. The remedy merely has been changed. Provisions affecting possession of mortgaged premises are matters of substance, but those affecting the remedy in order to secure possession may be changed from time to time. In Sturges v. Crowninshield, 4 Wheat. (U. S.) 122, 200, the court said:

“Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.”

In Mundy v. Monroe, 1 Mich. 68, it was said:

“It seems to be conceded by all who have written on this subject, that where the law sought to be invalidated affects the remedy only, and does not touch the right of the party secured by the contract, it is not repugnant to that provision of the Constitution which declares that no State shall pass any law impairing the obligation of contracts. ’ ’

In State Savings Bank v. Matthews, 123 Mich. 56, it was held that the statute which amended the mortgage foreclosure law by authorizing a sale after the lapse of six months (instead of one year as theretofore provided) from the filing of the bill, but al *485 lowed the mortgagor six months from the time of sale to redeem at any time, affected the remedy only. It did not impair the obligation of the contract in existing mortgages foreclosed under the amended act. The court quoted the following rule, laid down in Tennessee v. Sneed, 96 U. 8. 69:

“The rule seems to be that in modes of proceeding and forms to enforce the contract the legislature has the control, and may enlarge, limit, or alter them, provided that it does not deny a remedy, or so embarrass it with conditions and restrictions as seriously to impair the value of the right. ’ ’

For other cases providing that the remedy as to existing causes of action may be changed provided that they do not create, enlarge, or destroy any substantial rights, see Judd v. Judd, 125 Mich. 228; C. H. Little Co. v. L. P. Hazen Co., 185 Mich. 316. In Conley v. Barton,

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Bluebook (online)
236 N.W. 881, 254 Mich. 480, 1931 Mich. LEXIS 961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grand-river-avenue-christian-church-v-berkshire-life-insurance-mich-1931.