Adler v. New York Life Insurance , 272 Mich. 641 ( 1935 )

On March 15, 1935, an order was entered in the court below granting plaintiff relief, upon certain conditions, under the so-called mortgage moratorium act (Act No. 98, Pub. Acts 1933).Wade v. Farrell, 270 Mich. 562, was decided March 5th and a percuriam opinion rendered April 9th on motion for rehearing. The trial judge in the instant case, in the light of our holding in that case, thereafter reconsidered his former order, set the same aside and dismissed plaintiff's bill of complaint.

The mortgage in question, covering income-producing property, was executed by plaintiff's grantors March 3, 1930, to secure payment of $40,000. Default occurred September 3, 1932; defendant advanced moneys in payment of taxes and commenced foreclosure by advertisement in December, 1933. Sale was had February 28, 1934, and one day before the expiration of time for redemption, viz., February 27, 1935, plaintiff filed her bill seeking moratorium relief.

Act No. 20, Pub. Acts 1934 (Ex. Sess.), which amended Act No. 98, § 3, Pub. Acts 1933, by adding the following italicized words, "Whenever any mortgage is being foreclosed by advertisement and the equity of redemption has not expired," did not become effective until March 28, 1934. The foreclosure action terminated when sale was had February 28, 1934, and plaintiff's rights, if any, were under Act No. 98, § 3, Pub. Acts 1933, not section 5, because foreclosure proceedings were not pending on June 2, 1933, effective date of Act No. 98, Pub. Acts 1933.

Plaintiff had ample time, from December, 1933, to February, 1934, to seek relief under section 3, but she chose to stand by, take the entire revenues from the property and do nothing more until a single day before all her rights would expire.

We indicated the proper course in moratoria matters inVirginian Joint Stock Land Bank of Charleston v. Hudson,266 Mich. 644, and have not had occasion to deviate from that statement of the law. The relief sought by plaintiff must be such that appeals to the conscience of a court of equity.

"The court is invested with the discretion to grant delay. The discretion is not a personal power but a judicial jurisdiction. * * * Relief may be granted only after hearing. Being the moving party, the mortgagor must allege and prove facts which move the discretion of the court in his behalf."Virginian Joint Stock Land Bank of Charleston v. Hudson, supra, 652.

We fail to find such facts in the instant case. Not only does the moratorium act and all of its amendments retain power in the trial court to set aside or modify its orders upon violation thereof or for other good and sufficient cause, but such power is inherent in courts of equity. Cole v. AuditorGeneral, 132 Mich. 262, and see Brandimore v. Dickens,256 Mich. 128.

The final action of the trial court is in accord with the law of the Farrell Case, supra, which having been so recently stated we do not repeat.

The order entered April 18, 1935, is affirmed, with costs to appellee.

POTTER, C.J., and NELSON SHARPE, NORTH, FEAD, WIEST, BUTZEL, and EDWARD M. SHARPE, JJ., concurred.