Shelby Co. v. Dickinson , 259 Mich. 197 ( 1932 )

This is a summary proceeding to recover possession of real estate on statutory foreclosure of an instalment of a mortgage.

Sale was made March 18, 1930, for about $1,800, to the Bankers Trust Company, the mortgagee, which conveyed to plaintiff March 9, 1931. March 23, 1931, an agent of the Bankers Trust Company exhibited the sheriff's deed to the caretaker of the building and demanded possession, which was refused. Defendant contends that, by analogy to application for writ of assistance in chancery foreclosure, the deed should have been exhibited to her and possession demanded before summary proceedings would lie.

A summary proceeding is a legal, not an equitable action. The statute, 3 Comp. Laws 1929, § 14975, subd. 3, permits the remedy:

"When any person shall continue in possession of any premises sold by virtue of any mortgage or execution, after the expiration of the time limited by law for the redemption of such premises."

When the period of redemption expires, continued possession by the mortgagor is unlawful, and no notice to quit is necessary. Lieblien v. Hansen, 178 Mich. 11; Allen v.Carpenter, 15 Mich. 25; Gage v. Sanborn, 106 Mich. 269. The proceedings are statutory, and, as the statute does not make exhibition of deeds and demand for possession a requisite to the action, defendant's contention is untenable.

About a month after the mortgage sale, an arrangement was made between defendant and the Bankers Trust Company that a contract purchaser from defendant should make payments to the trust company toward redemption. He paid $600. The foreclosure was not waived by such subsequent partial payment, because, while it may be waived by agreement (Dodge v. Brewer, 31 Mich. 227), no intention to waive appears from the arrangement made (Cameron v. Adams, 31 Mich. 426; Audretsch v. Hurst, 126 Mich. 301).

Defendant, however, contends that the foreclosure was void because the payment of $600 was not deposited in the office of register of deeds before expiration of the period of redemption. The argument is that she thereby was prevented from redeeming at such office. There is no statute requiring such deposit, there was no agreement to deposit, defendant could have redeemed by direct payment to the purchaser, she did not attempt to redeem at all, and this is not a bill for redemption. We discover no reason for voiding the foreclosure on this ground.

Judgment for defendant reversed, and the cause will be remanded for entry of judgment for plaintiff, with costs.

CLARK, C.J., and McDONALD, POTTER, SHARPE, NORTH, WIEST, and BUTZEL, JJ., concurred.