Kittermaster v. Brossard

Frederick W. Kittermaster, etc. v. Hubert Brossard and Annie Brossard

Kittermaster v. Brossard, 63 N.W. 75 (Mich. 1895)

Court: Michigan Supreme Court · State Highest Courts
Decided: April 30, 1895
Judges: Hooker, Other
Citations: 63 N.W. 75105 Mich. 2191895 Mich. LEXIS 815
Disposition: Decree affirmed.

Cited by 8 1 descriptions by later courts

Headnotes

Mortgage — Chancery foreclosure — Solicitor’s fees. 1. Provisions for attorney’s and solicitor’s fees in mortgages, except where expressly sanctioned by statute, are void.1 2. The equity court has no power to enforce an agreement in a mortgage for the payment, in case of foreclosure in that court, of a specified sum of money as a reasonable solicitor’s or attorney’s fee therefor, in addition to all other legal costs. 3. How. Stat. § 6623, authorizes the Supreme Court to establish: rules of practice for the circuit courts in chancery with a view, among other things, to the diminishing of costs; and Chancery Rule No. 90 regulates the imposition of costs, and restricts the power of'the circuit courts within the limits set .forth in the rule.

Summary

Appeal from Wayne. (Frazer, J.) Bill to foreclose a mortgage. Complainant appeals. The facts are stated in the opinion.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Hooker

Text extracted by OCR from a scanned original; check the original for exact wording.

Hooker, J.

Complainant appeals from a pro confesso decree of foreclosure, and the only question raised by the record is his right to have the decree increased by including a fee of $40, provided for by the following clause in the mortgage:

“And it is further expressly agreed that as often as any proceeding is taken to foreclose this mortgage, either by virtue of the power of sale herein contained or in chancery, or in any other manner provided by law, said first parties shall pay said second party forty dollars, as a reasonable solicitor or attorney fee therefor, in addition to all other legal costs, and will keep said mortgaged premises insured, for the benefit of said second party.”

It seems to be the settled law of Michigan that provisions for attorney’s fees in instruments are void, except where expressly sanctioned by statute. This rule is asserted in cases of stipulated attorney’s fees in promissory notes in the case of Bullock v. Taylor, 39 Mich. 137 , where such provisions were held void, as a stipulation for a penalty, and opposed to the policy of our laws as to attorney’s fees. See, also, Wright v. Traver, 73 Mich. 495 . Numerous cases support the rule as applied to stipulations for attorney’s and solicitor’s fees in mortgages. Van Marter v. McMillan, 39 Mich. 304 ; Myer v. Mart, 40 Id. 517; Canfield v. Conkling, 41 Id. 371; Parks v. Allen, *221 42 Id. 482; Vosburgh v. Lay, 45 Id. 455; Millard v. Truax, 47 Id. 251, 50 Id. 343; Kennedy v Brown, 50 Id. 336; Sage v. Riggs, 12 Id. 313; Hardwick v. Bassett, 29 Id. 17; Damon v. Deeves, 62 Id. 465; Louder v. Burch, 47 Id. 111; Botsford v. Botsford, 49 Id. 31.

It is contended that a court of equity may impose a reasonable solicitor’s fee, as has been done by this Court in cases cited. 1 How. Stat. § 6623, authorizes the Supreme Court to establish rules of practice for the circuit courts in chancery with a view to “the diminishing of costs,” among other things. Such rules have been made, and Chancery Rule No. 90 regulates the imposition of costs, and restricts the power of the circuit courts. Several of the cases cited deny the validity of agreements, by parties, for larger costs than those provided by law. We think that the cases cited clearly settle the law of this State upon the subject before us, and that the complainant was not entitled to the fee claimed. The United States Supreme Court has taken the same view of the Michigan cases. See Bendey v. Townsend, 109 U. S. 665 .

The decree of the circuit court must be affirmed.

The other Justices concurred.

See Perrin v. Lepper, 72 Mich. 454 ; Barnes v. Marshall, 102 Id. 248.

How later courts describe this case

Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.

(provision requiring party to pay forty dollars)

Gerken Paving Inc. v. Lasalle Group Inc., 558 F. App'x 510 (6th Cir. 2014)

Cited by 8 cases

View all citing references →

Relies on it most ⓘ

United Growth Corp. v. Kelly Mortgage & Investment Co.272 N.W.2d 340 (Mich. Ct. App. 1978)
State Farm Mutual Automobile Insurance v. Allen212 N.W.2d 821 (Mich. Ct. App. 1973)
Wilson Leasing Co. v. Seaway Pharmacal Corp.220 N.W.2d 83 (Mich. Ct. App. 1974)
Salvador v. Connor276 N.W.2d 458 (Mich. Ct. App. 1978)
Curtis v. Mueller150 N.W. 847 (Mich. 1915)
Gerken Paving Inc. v. Lasalle Group Inc.558 F. App'x 510 (6th Cir. 2014)

Most recent

Gerken Paving Inc. v. Lasalle Group Inc.558 F. App'x 510 (6th Cir. 2014)
Salvador v. Connor276 N.W.2d 458 (Mich. Ct. App. 1978)
United Growth Corp. v. Kelly Mortgage & Investment Co.272 N.W.2d 340 (Mich. Ct. App. 1978)
Wilson Leasing Co. v. Seaway Pharmacal Corp.220 N.W.2d 83 (Mich. Ct. App. 1974)
State Farm Mutual Automobile Insurance v. Allen212 N.W.2d 821 (Mich. Ct. App. 1973)
Triple Cities Construction Corp. v. Byers Machine Co.172 Misc. 519 (N.Y. Sup. Ct. 1939)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 5

Depth	Case	Cited by
	Bullock v. Taylor, 39 Mich. 137 (1878)	41
	Perrin v. Lepper, 40 N.W. 859 (Mich. 1888)	34
	Bendey v. Townsend, 109 U.S. 665 (1884)	17
	Wright v. Traver, 3 L.R.A. 50 (Mich. 1889)	11
	Van Marter v. McMillan, 39 Mich. 304 (1878)	5

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