Thurber v. Detroit Fire & Marine Ins. , 281 Mich. 346 ( 1937 )

Wibst, J.

(dissenting). This is an appeal from a mortgage moratorium order, appointing a receiver to collect the rents of the mortgaged premises and pay the net proceeds, above operating and maintenance charges, to the mortgagee. The mortgage covers premises known as 244-248 west Congress street, in the city of Detroit, upon which there is a five-story mercantile building. Defendant mortgagee foreclosed by advertisement and purchased at the sale, held October 15, 1935. October 3, 1936, application was made for moratorium relief. A hearing was had and, upon testimony taken, the court made the mentioned order extending the period of redemption to March 1, 1937, upon the terms stated.

Upon review defendant avers an abuse of discretion on tire part of the court in granting the order and the extension of the period of redemption under the circumstances here disclosed.

The property is estimated to have a present value of from $41,000 to $65,000. No payment was ever made upon the principal and at the time of the foreclosure some interest was in default and taxes had been paid by the mortgagee, so the amount due was about $43,000.

Plaintiff is the owner of an undivided one-third interest in the property. The other two-thirds interest is owned by plaintiff’s sister Catherine Crowley McKown and the estate of plaintiff’s mother Lavinia Crowley. Plaintiff and her sister, Catherine Crowley McKown, are sole beneficiaries of the estate of their deceased mother, subject to annuities to two persons who were, in October, 1936, more than 88 years of age. Until death of the annuitants, the plaintiff cannot obtain part of the estate and until she obtains her part of the estate she is not able to redeem. Plaintiff’s sister, one of the mortgagors and joint beneficiary in the estate of the mother, is not a party herein, and whether she will devote her share of the estate to redemption from the mortgage sale does not appear.

It is questionable whether the whole estate, if and when it is freed by death of both annuitants, will, if so applied, meet the mortgage obligation.

It is significant that the plaintiff took no step in the' matter until nine days before expiration of the period of redemption and just as enjoyment of rentals therefrom was about to cease. 1

The mortgage covered business property, quite well rented and, while the interest on the mortgage was paid to March 30, 1935, the mortgage itself was due November 14, 1932, and nothing was ever paid on the principal; the mortgagee paid $1,748.26 on taxes before the mortgage sale and, at the date of the moratorium order, taxes amounted to $10,516.16. The mortgagee bid in the property at the sale for $43,241.49.

The court was in error in considering the expectancy of death of the annuitants as a good reason for extending the period of redemption and forcing the mortgagee to forego rights on such contingency.

The moratorium order should be vacated, with costs to appellant.

North, J., concurred with Wiest, J.