Partridge v. Hemenway ( 1891 )

Long, J.

This bill was filed to foreclose a mortgage given by Hiram F. Hemenway and wife. At the time the mortgage was executed upon lots 9 and 10, some buildings were situated thereon, which were thereafter removed. The testimony abundantly shows that the two lots were only of the value of about $50 at the time the mortgage waB given, aside from the buildings, and are worth no more now. No question is raised but that J. F. Partridge & Bro. paid full value for the mortgage,— $400, — and that it was assigned to the complainant for value. At the time she took it the property was not of greater value than the mortgage. No showing is made that she ever consented to the removal of the buildings from these lots, and she denies ever hearing that Hemenway contemplated removing them. The first she heard of the removal was after they had been removed and placed on lot 2, which defendant Hartwell thereafter purchased. The contract entered into by J. F. Partridge & Bro., set out in the opinion of my Brother Morse, was to reduce the amount of the principal in the mortgage on condition that certain monthly payments were made. This was not kept by Hemenway. I am unable to see how this contract should be construed as an assent on complainant's part to the removal of the buildings. Nothing of the kind is said in the contract, and, if there were, the contract was not performed by Hemenway. I am satisfied from the testimony and the surrounding circumstances that Mr. J. F. Partridge never consented to the removal of these buildings. He testifies that he never consented thereto, and it is impossible to believe that he would waive complainant's right to a lien upon the buildings while nearly $400 yet remained due upon the mortgage, and accept the two lots valued at $50 in lieu thereof.

The case is then'•presented whether the Iona fide assignee of the mortgage shall lose her lien by the removal of these buildings upon a lot, the title to which was afterwards acquired by defendant Hartwell by a.quitclaim deed. No one would claim, if the fact be established, which I think is established, that the complainant or J. F. Partridge & Bro. never consented to the removal of the buildings, and that Hemenway removed them without the knowledge or consent of these parties, that the complainant would lose her lien under the mortgage. Hemenway, the mortgagor, could not set up this claim, and Hartwell under his quitclaim deed stands in no better position.

The case is a peculiar one. It is contended that this is a litigation of the title to the property, which cannot be done in the foreclosure proceedings. The case of Summers v. Bromley, 28 Mich. 125, is cited. I do not think the case falls within the principles laid down in that case. The buildings were covered by the lien of the mortgage before they were removed. This is not disputed. The defendant Hartwell was made a party defendant ' by réason of his claim as subsequent purchaser or incumbrancer.

The court below- decreed that the buildings were still incumbered by the mortgage, and I think correctly so held; and that they be sold if the lots did not bring enough to satisfy the mortgage.

The decree must be affirmed.

Champlin, O. J., McGrath and Grant, JJ., concurred.