O'Connor v. Keenan

94 N.W. 186, 132 Mich. 646, 1903 Mich. LEXIS 889

• Court: Michigan Supreme Court
• Decided: April 7, 1903
• Docket: Docket No. 90
• Status: Published

Opinion

Grant, J.

{after stating the facts). 1. We think this is not a case where the mortgagee is at liberty to ignore the statute, and sell three separate lots of land in ope parcel. They were not occupied as one farm or lot; but were occupied by three separate and distinct tenancies. It is true that these tenancies were in accordance with the descriptions in the three deeds by which the grantee obtained title, but this does not constitute occupancy as one parcel. That the intention of the owners was to subdivide the tract into city lots does not authorize a sale as one parcel. The lands were worth much more than the amounts of the mortgages. There is nothing to indicate that each lot could not be sold separately to advantage. The statute is designed to protect the mortgagor in his right of redemption. We think the sale was void under the former decisions of this court. Keyes v. Sherwood, 71 Mich. 516 (39 N. W. 740); Halves v. Insurance Co., 109 Mich. 324 (67 N. W. 329, 63 Am. St. Rep. 581).

That there was a fence around the entire parcel we consider of no significance. Such fence was necessary to the occupancy of each of the tenants. Nor is it conclusive that in the bill for partition and in the decree the lands were described as consisting of three parcels, one of which was composed of two and four-tenths lots. Such descriptions may have been proper for partition purposes, but do not control in foreclosure sales under the statute, which requires “distinct farms, tracts, or lots not occupied as one parcel ” to be sold separately.

Counsel for appellant cite and rely upon Gage v. Sanborn, 106 Mich. 269 (64 N. W. 32), and Harris v. Creveling, 80 Mich. 249 (45 N. W. 85). In Gage v. Sanborn the suit was by summary proceedings to recover possession of lands sold upon mortgage foreclosure. The description was similar to that here, — two lots and a part of another. That holding was based upon the fact that there was no evidence to show that the lots were not adjoining and used as one parcel, and the onus probandi was upon the defendant. Harris v. Creveling was a similar case.

The decree of the court setting aside the sales is sustained.

2. Under 3 Comp. Laws, § 11020, the mortgagee was justified in proceeding to sell, and, upon failure to redeem, to become a party to the partition proceedings, and succeed to the rights of the mortgagors. But the sale being held void, and the proceedings prior to the sale being regular, it follows that the decree should provide a specified time for redemption, and, upon failure to redeem within that time, a resale of the premises. Huyck v. Graham, 82 Mich. 353 (46 N. W. 781). The decree, in so far as it adjudged the appellant to succeed to the mortgage interests of Mary E. Barnard, and to be admitted a defendant as the holder of such mortgage interests, does not give him any right to proceed under the foreclosure proceedings, but leaves him to new proceedings, either in chancery or by advertisement. In this respect the decree must be modified, and 60 days given within which to pay the amount due. Upon failure to pay within that time, appellant may proceed to sell under the foreclosure proceedings.

The decree will be modified and entered in this court in accordance with this opinion. The appellant will recover the costs of this court.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Carpenter, J., did not sit.