Taylor v. Carter

Fellows, J.

(after stating the facts). The procedure here indulged in at defendants’ insistence, of disposing of defendants’ interest in the case separate and apart from the case itself is not to be commended. Inasmuch as a final decree was. entered dismissing her cross-bill on its merits and the case so far as she is concerned has been fully presented, we will consider the questions on this appeal on their merits.

The covenants of the mortgage by its terms extended tó the assigns of the parties; this included defendant. Erichsen v. Tapert, 172 Mich. 457 . In Vawter v. Crafts, 41 Minn. 14 ( 42 N. W. 483 ), a case cited with approval by this court in Commercial Bank v. Hiller, 106 Mich. 118 , it was held that covenants such *368 as we have under consideration run with the land. We therefore come directly to the main question in the case.

Authority will be found holding- that the mortgagor who has not performed his covenants may not .insist on his right to a partial release given him by the covenants and terms of the mortgage; and authority will also be found that such right may not be exercised after foreclosure proceedings have been instituted. If the question was a new one a more extended consideration of such authorities would be necessary. But the question is foreclosed by the former decisions of this court. In Nims v. Vaughn, 40 Mich. 356 , a mortgage had been given containing a covenant to release a portion of the security. Proceedings had been instituted to foreclose the mortgage, decree had been entered and affirmed by this court on appeal. An independent suit was then instituted for the specific performance of the agreement for the partial release; the relief was granted by the trial court, and the decree affirmed by this court. It was there said:

“The real case .in controversy seems to be this: A mortgagee has taken security upon several lots of land which apparently are more than sufficient to protect him, but has agreed with the mortgagor, as a. part of the transaction, that the latter may withdraw from the lien the first three of the lots he may have an opportunity to dispose of. Afterwards the mortgagee refuses to perform his agreement, insisting upon its invalidity, and upon various excuses, none of which has force. We see no alternative but to hold him to his agreement.”

The case of Commercial Bank v. Hiller, supra, was a foreclosure suit. The mortgage contained a covenant to release one-fifth of the lots when sold. The decree of the trial court had sustained the rights of the mortgagor to the enforcement of this covenant. Affirming that part of the decree it was said by this court x

*369 “We think the conclusion of the learned circuit judge that, under the first stipulation above quoted, the mortgagor had the right to have one-fifth of the lots covered by the mortgage released when sold or contracted to be sold, upon making demand therefor at any time,, is fully sustained by authority, and is correct in principle. The undertaking is absolute, and not limited as to time, but, on the contrary, the contract is to release at such time or times as the mortgagor or his assigns or grantees may request.”

And in Vawter v. Crafts, supra, where a similar question was quite fully considered, and which case was approved in the Hiller Case, it was said:

“Construing this covenant in connection with the other provisions of the mortgage, and in the light of the manifest purpose which it was designed to sub-serve, we are of the opinion that the right to a partial release upon the stipulated terms continues until the mortgagee has fully executed the power by sale of the mortgaged premises.”

In the partial releases language was quite uniformly used preserving the mortgagee’s lien upon the remaining land, and plaintiff urges that such language should be construed to relieve her from the covenant under consideration. But it must be borne in mind that the mortgage lien thus preserved was subject to the covenant we have quoted. While the mortgage still existed as a lien on the remaining lands it was a mortgage containing an agreement to release on the payment of one dollar per acre. We find nothing in the language of any of the releases or of the mortgage itself which in any way tends to modify this agreement. It may be unfortunate for this plaintiff that her ancestor executed many of these partial releases without receiving the full sum of a dollar per acre for the land released, and it may also be unfortunate that her ancestor entered into this agreement; but courts cannot make contracts for parties; they can *370 only enforce them as made. By the terms of the mortgage plaintiff’s ancestor agreed that he would release “any part of said lands upon the payment to him by the said mortgagor or his assigns of the sum of one dollar per acre.” By this provision plaintiff is bounds This court cannot do otherwise than to enforce the agreement.

It' follows that the decree appealed .from must be reversed and one here entered in conformity with this opinion. As we understand this record defendant did not make her tender until after this suit was brought. She should pay the costs of the circuit court and will recover her costs in this court.

Moore, C. J., and Steere, Brooke, Stone, Clark, and Bird, JJ., concurred. Sharpe, J., did not sit.