Canfield v. Shear , 49 Mich. 313 ( 1882 )

The question on the merits which this appeal presents is whether the decree is right in charging Alexander T. Campau personally with the mortgage debt. Campau bought the mortgaged premises of the defendant Shear, the mortgagor, subject to the mortgage, and his deed is expressly made subject to the mortgage, but does not in terms obligate Campau to pay it. His negotiation was had through the agency of one Smith, and Campau denies that he authorized Smith to promise payment, or that he ever made any personal promise. It is proved beyond question, however, that Smith had authority from Campau to purchase; that he agreed to take the mortgaged premises and to pay $12,750 for them; that he did pay all except the amount owing on the mortgage, and that the reason why the remainder was not paid was because the mortgage was not then due, and the mortgagee would not receive it. The payment was therefore postponed until the mortgage fell due, and both Smith and Shear understood Campau was to pay it. We think the assumption of the mortgage debt by Campau, as between himself and Shear, is fully made out, and to cast upon Shear any deficiency that might exist after a sale, would take from him a portion of the purchase price which Campau agreed to.

The only other question in the case concerns the time when sale should be made. The bill was filed April 21, 1881, without making Campau a party. He was brought in by amendment October 6, 1881. Sale was decreed to be made any time after July 26, 1882. We think this was premature. The statute does not permit a sale until the expiration of a year from the filing of the bill; and when important relief is prayed as against a defendant brought in by amendment, the time should run from the filing of the amended bill.

The decree should be modified to permit a sale after sixty days. As each party succeeds as to one branch of the appeal, no costs will be awarded in this Court.

The other Justices concurred.