Massachusetts Mutual Life Insurance v. Kovinsky

269 N.W. 129, 277 Mich. 163, 1936 Mich. LEXIS 649

• Court: Michigan Supreme Court
• Decided: October 5, 1936
• Docket: Docket No. 62, Calendar No. 39,002.
• Status: Published

Opinions

I cannot concur with the opinion of Mr. Justice WIEST to the full extent in which he has modified the moratorium order of the circuit judge. Since defendants' answer admits the defaults alleged in the bill of complaint, I can and do concur in that portion of Justice WIEST'S opinion which modifies the circuit judge's moratorium order by permitting plaintiff to proceed to the taking of a decree. Taking the decree will insure timely and final adjudication of the rights of the respective parties without appreciable extra burden of expense or prejudice to any of the parties litigant.

However, I cannot agree to that part of the modification wherein it is further provided that after taking the decree plaintiff herein may have a sale of the mortgaged property. As noted in Justice WIEST'S opinion the circuit judge found there is $200,000 equity in the property, and a more favorable situation in the immediate offing. Sale of the mortgaged property in regular course following the decree will necessitate substantial costs for service, advertising, and commissioner's fees. This will result in an unnecessary hardship in that it will burden the mortgagor or the mortgaged property with this extra expenditure prior to the expiration of the moratorium period; and further it will prevent the accomplishment of one of the purposes of moratorium legislation, i. e., temporary continuation of the status quo. Further, and of greater importance, immediate sale deprives the mortgagor (or those standing in his place) of one of the principal benefits afforded by a moratorium, i. e., a sale of the property at a later date when it is expected that more favorable economic conditions will result in obtaining a better price for the mortgaged property.

"The purpose of this and other so-called moratorium statutes is to prevent the sacrifice of the real estate involved in mortgages and land contracts." Keys v. Hopper, 270 Mich. 504.

"The granting of relief under the mortgage moratorium act is a matter of discretion for the trial court and will be sustained unless an abuse of discretion is affirmatively shown. * * * The purpose of the moratorium act is to prevent valuable property from being sold at distress prices occasioned by an economic emergency, and give mortgagors a chance to preserve their equities." Youngs v. Burleson, 274 Mich. 132.

See, also, Detroit Trust Co. v. Slack, 273 Mich. 461. If delay of sale accomplishes no more than a reduction in the deficiency, it is of serious moment to the mortgagor. It is not unfair to the mortgagee. It avoids circumstances which tend strongly to chill the mortgage sale; and it helps to accomplish a fundamental purpose of moratorium legislation.

It is not an answer nor an objection to say that sale at the expiration of the moratorium period, herein fixed by the court as March 1, 1937, will extend the time within which there may be redemption six months or more beyond such moratorium period. Surely the circuit judge who fixes the term of a moratorium is aware of this result; and if it is inequitable he can and should shorten the moratorium term accordingly. In the instant case the circuit judge did not see fit to do so. Instead he decreed a moratorium to March 1, 1937. This record does not disclose an abuse of discretion. There should be no modification of the moratorium in this particular, especially in the face of the circuit judge's finding of "a more favorable situation in the offing."

The moratorium order of the circuit judge is modified, but only in accordance herewith. No costs are awarded.

FEAD, BUTZEL, BUSHNELL, SHARPE, and TOY, JJ., concurred with NORTH, C.J. POTTER, J., did not sit.