Michigan Insurance v. Brown

Campbell J.:

The bill in this cause was filed to foreclose a mortgage made by Henry II. Brown and wife to complainants, in November, 1847, conditioned for the payment of “all sums of money now due or hereafter to become due." The bill averred a bond of previous date, conditioned for the payment of $11,200 and interest. The bill was filed July 20th, 1859. To this bill Brown interposed the Statute of Limitations as a defense, and Barker averred in his answer that, on the 21st day of July, 1859, the day after the bill was filed, he purchased the premises from Brown for a valuable consideration (the amount of which was not set forth) without notice of the mortgage, which was, however, on record. He claimed that the mortgage was invalid because not for a sum certain set forth on its face.

The mortgage and bond set forth in the bill were proved as exhibits before the’ commissioner, and are returned as a part of the record. But defendants claim they should be excluded, on the allegation that they were excluded in the Court below, as not filed in season. Affidavits are filed on both sides.

We have no doubt the proofs are properly in the case. They appear distinctly to have been regularly taken on proper notice, and if they were not filed earlier than is •alleged, \the court could not on that account regard them as nullities. Had the case presented any grounds for supposing surprise, that would have afforded some reason below for allowing the cause to stand open for further proofs. But the party is bound to know what proof his adversary takes at the time and place appointed, and, if 'not seeing fit to attend, he may still ascertain it at any ■time from the commissioner; and the court will always be liberal in relieving against accident or surprise. In the case before us there is no reason to believe any surprise possible. The testimony consists entirely of documents set •out in the bill verbatim, and the proof of their execution. Under rule 56 the mortgage, not being denied by the -answers, might have been read without .being made an exhibit. Although the bond does not prove itself, yet, on being proved, any defense to it must be affirmatively made, out. No defense, except the Statute of Limitations, is attempted to be made out by proof; and the stipulation extending time covers only the facts attending Barker’s purchase. There is no reason, therefore, why this evidence ■should be disregarded. And, inasmuch, as the case has been in this Court two years without any motion to strike it out, or to have a new transcript, we should not be disposed in a more doubtful case to permit such laches• But the facts of record show that no injustice can be ■done by retaining this proof.

It is claimed by defendant Barker that this mortgage is invalid for want of certainty in the amount secured. As the complainants do not seek to recover any advances made after Barker’s purchase (nor, indeed, any debts accruing after the date of the mortgage), none of the questions in regard to intervening equities arise. The only question presented is whether a mortgage to secure all debts existing, is good without specifying them. Upon a review of the cases which were cited on the argument we are satisfied that there is no legal objection to such a mortgage. It affords the means of ascertaining by inquiry the amount claimed to be due at any time. The objection that a limit of liability should appear is more specious-than sound. Such a limitation will always be made large-enough to cover all contingencies, and leaves it still necessary to make inquiry to learn the real amount secured.. And, so far as opportunities for fraud are concerned, such a maximum limit would be quite as convenient a medium of deceit as an open mortgage. As a matter of fact, even when- mortgages have been given for specific debts, inquiry is usually necessary to learn the balance unpaid; while mortgages of indemnity introduce not only uncertainty in amount but contingency of liability. And yet there is no-respectable authority which vitiates these. Although upon the question raised in this case there are some authorities sustaining the defense, the general course of decision is so clearly the other way that we are satisfied the mortgage must be held valid. We are of opinion the law has been settled correctly, and that the supposed evils of permitting such transactions are no greater than those which attend very many other dealings of undoubted legality. We do not, therefore, deem it necessary to inquire into the good faith or valuable consideration of" defendant Barker’s alleged purchase.

The defendants claim, however, that the mortgage is ban’ed by the Statute of Limitations. We do not think this ground is tenable. The Statute of Limitations is confined to actions or suits to enforce payment of the contract as a personal demand. Equity follows the analogies of' the law in all cases where an analogous relief is sought upon a similar claim. But where the relief sought is in its- nature one of equitable and not of legal cognizance, and the remedy is of a purely equitable nature, equity follows its own rules. The foreclosure of mortgages is one of the ancient equitable remedies. Its object is simply to enforce a lien upon lands by making it absolute unless redeemed. If there were any analogy between this and any legal actions, it would apply to real, not personal actions. But, in regard to mortgages, equity, although raising presumptions from the lapse of time, has not made-these presumptions conclusive. And, in the present case, the time has not run long enough to raise the presumption of payment, which in such cases requires a lapse of twenty years. 1 Story's Eq. Juris. §64 a, 529; 2 Story's Eq. Juris. §1028 a, 1028 b, 1519; 2 Pars. on Cont. 379. The rule fixing such presumptions at twenty years was adopted undoubtedly in accordance with the limitation of real actions in the common law courts, but it differs- from that in not being an absolute bar to the remedy. We think the complainants are entitled to foreclose their mortgage.

The bill under the statute seeks a personal decree against Brown. The power to grant such a decree is not one originally possessed by courts of equity, but is purely statutory, and is given in order to avoid circuity of action-by a resort to a suit at law on the debt in addition to-a suit in equity to foreclose. It is therefore a mere substitute for a legal action; and must -be governed by the rules which would apply at law* The statute allows a personal decree for the balance remaining unsatisfied after sale, “in the cases in which such balance is recoverable at law." If barred at law, it is barred in equity.

The bond in the present suit was due more than ten years before suit was brought. Although payments are-indorsed as made within ten years, the statute expressly denies to such indorsements unexplained any weight as evidence of payment, for the purpose of charging the debtor by treating them as an acknowledgment, so as. to take the case out of the operation of the law. Comp. L. § 5377. In the absence of other testimony, therefore, the statutory bar is complete, and no decree can be made against Brown for the balance which may remain unpaid.

The bill, however, should not have been dismissed against him, as he was a necessary party. He was not only mortgagor but actual owner of the equity of redemption when the bill was filed.

The decree below dismissing the bill must be reversed. A decree must be entered in the usual form, requiring defendants within sixty days to pay ^he sum of $3,050, with interest from October 1st, 1849, at seven per cent, per annum, and with costs of both courts, and in default of such payment directing a sale in the usual manner, and ordering that such decree be transmitted to the Court below for execution. No personal liability clause for the debt itself will be inserted, as there can be no claim unless the mortgaged premises are inadequate to pay the costs, and then it must be confined to those.

Martin Ch. J. and Christiancy J. concurred. Manning J. did not sit in this case.