Watson v. Lynch

Mortgage Foreclosure—Sale—Authority oe Sheriff. *In a foreclosure sale by advertisement, the notice specifying that the mortgagee will make the sale, the sheriff is not authorized to make it, except upon instructions from the mortgagee.

Appeal from Ogemaw; Sharpe, J. Bill by Annette H. W.atson against Sanford Lynch, Libbie Lynch, Clarence J. Phelps, sheriff, Myron H. French, Fremont F. French, Charles Magnassan, and Leonhard Gruner and Caroline P. Ellis, executors of the last will and testament of Joseph J. Ellis, deceased, to set aside a foreclosure sale and to foreclose the mortgage. From a decree for complainant, defendants appeal. Complainant resides in Dexter, Washtenaw county. In 1886 she loaned to defendant Sanford Lynch $100, and took a mortgage upon certain lands lying in Ogemaw county. Defendant French subsequently purchased the land, subject to the mortgage, and conveyed it by quitclaim deed to defendants Gruner and Ellis, executors of the estate of Joseph J. Ellis, deceased, and they conveyed it to Hudson P. Ellis. On June 19, 1899, the mortgagee proceeded to foreclose said mortgage by advertisement. One King, of Ann Arbor, was her attorney. Notice was published as required by law; the sale to take place on September 16th, at 10 o’clock in the forenoon. The amount due upon the mortgage was about $4=50. At the day of sale, defendant Phelps, the sheriff, opened the sale at the time appointed, adjourned it until the arrival of the afternoon train, and then sold the land to Hudson P. Ellis, who was then the owner, and bid it in as the agent for Gruner and Mrs. Ellis, the executors of the estate of Joseph J. Ellis. The land was worth fully twice the amount of the sale. Mr. Ellis testified that it was worth the amount of the mortgage. There was evidence that it was worth more than this. The reason for the postponement of the sale, given by Mr. Phelps, was that he had received no instructions from the mortgagee, and that he might get instructions, or that some one might come, on the afternoon train. Two days after the sale Mr. Phelps wrote Mr. King as follows: “ I write you today, informing you that Saturday, September 16th, at the time advertised, I sold a certain description of land at mortgage foreclosure sale. As I heard nothing from you or the mortgagee, Mrs. Annette Watson, and not knowing where she lived, at the time as advertised I opened the sale at 10 o’clock, and held the sale open for the space of five and one-half hours, or until the p. m. mail came from the south, thinking some instructions might come. But, not hearing anything from you, I offered the same for sale, and have in my care two hundred and seventeen dollars and seventy cents in cash, which is the amount the property brought. * * * As you are the attorney for the mortgagee, please advise me as to the disposition of this money.” Mr. King immediately replied, repudiating the sale, and asked him by whose order or by what authority he presumed to make it, inasmuch as he had received no instructions from either King or Mrs. Watson. Complainant soon after filed this bill to set aside that sale and to foreclose the mortgage. Proofs were taken in open court, and a decree entered for the complainant.