Powers v. Golden Lumber Co.

Campbell, J.

Powers filed a bill for the purpose of enforcing his rights to reimbursement under the redemption of a mortgage, and also to enforce a mortgage of his own against the defendants, who were subsequent encumbrancers and purchasers. Powers held a mortgage on which at the date when his bill was filed there were no arrearages, but an installment was to become due on the 1st of November, 1877, the bill being filed October 11, 1877. • A previous mortgage covering the lands on which he held 'his security had been foreclosed under the statute in 1876, and the time of redemption would have run out July 15, 1877. Powers redeemed this on the 6th of July, 1877.

After his bill was filed his mortgage was paid, and he discharged it. But inasmuch as no payment was made beyond this he procured a decree for the enforcement of his lien for the redemption money paid to get rid of the statutory foreclosure.

■An appeal is taken from this decree on the grounds, first, that the bill was prematurely filed; and second, that the discharge of his mortgage cut off his lien for the redemption money. Both of these claims are put on the same basis, which is the assertion that the lien for the redemption money was a mere appurtenance to the mortgage, and not an independent or separate equity.

This view is not in our opinion entitled to any weight. The principles underlying the rights of parties in mortgage matters are too elementary to require extended consideration. Any one who has any interest whatever in the mortgaged premises, or in any part of them, whether absolute or qualified, has a right of redemption, and müst, if he- redeems at all, redeem completely. If Powers had, instead of holding a mortgage on all the land, been absolute owner of a parcel of the tract regularly sold as an entirety, he could not under the statute have redeemed *471 less than some entire parcel sold separately on the foreclosure, but he would have had a right to redeem the whole, and enforce his lien on so much of the parcel as he did not previously own. In such a case it is obvious that his title to reimbursement for the payment beyond what protected his own share, could not depend on what he should subsequently do with his original estate. While a sale on statutory foreclosure satisfies the debt secured by the foreclosed mortgage to the extent of the proceeds of the sale, and thus far releases the personal obligation, yet any party redeeming gets such an interest in the land as is necessary to protect him. And if he is a subsequent encumbrancer, who has advanced the money to protect his security, the redemption creates no merger of liens, but those who stand later in the order of title or security must pay the redemption money which he advances for the benefit of their titles, as well as his mortgage which made the advance necessary. These two claims are separate and distinct, and paying one cannot, in good sense or reason, have any effect to release the other.

Powers had a right to file his bill to enforce his redemption hen at any time after that lien became fixed. A bill to enforce it would have been defective unless it had brought in all the subsequent liens and titles. 1 Dan. Ch. Pr. 261 et seq. The fact that his own mortgage had not yet become payable did not make it any the less a security involved in the enforcement of this hen, and necessary to be disposed of on a final redemption or foreclosure. Its subsequent payment did not lessen the amount unpaid on the lien which was superior in time. The money paid on the statutory redemption was a separate payment to the benefit of all existing claims, which would have been destroyed had the foreclosure become absolute. It cannot concern the liability of these subsequent claims to be subjected to the hen that some other intermediate lien has been transferred or discharged. It cannot hurt them if the holder of this *472 lien allows a part of his liens to be discharged instead of requiring payment of the whole, any more than if he had accepted part payment on an ordinary mortgage and given time on the rest, or accepted payment of one of two successive mortgages and retained the other. Baker v. Pierson 6 Mich. 522 .

. Nothing can relieve the land of complainant’s lien except its payment or voluntary discharge.

We think the decree directing a sale and foreclosure is valid and should be affirmed. No decree can be made personally against Eemick and Davis [the original mortgagers] for any deficiency, as the lien is confined to the land and does not revive their personal liability extinguished by the statutory foreclosure. { The setting forth of such a liability in the decree is always merely provisional, and until a deficiency arises, and they are called in to answer for it, Eemick and Davis could not be bound to pay it even if responsible. They have not appealed, and therefore no costs can be awarded to them for the error. But the decree should be modified in this respect, so as to prevent any future complications. The parties appealing were not concerned in that part of the decree.

/"““The decree must be affirmed except as to so much of it as sets forth a personal liability in Eemick and Davis, and must' be modified so as to leave out any such provision. | The time of sale may be fixed at any time after the first of August next, and notices may be given at any time after the 10th of June, if payment is not made sooner. Complainant is entitled to his costs in this court against the appealing parties.

The other Justices concurred.