United States Supreme Court Cases & Opinions

U.S. Supreme Court

Bendey v. Townsend, 109 U.S. 665 (1884)

Bendey v. Townsend

Argued November 18, 1883

Decided January 7, 1884

109 U.S. 665

Syllabus

The maker of a promissory note executed, to one who for his accommodation signed his name on the back of the note before its delivery to the payee, a mortgage of real estate to indemnify him against all costs and charges arising from his contract, with a power of sale in case of the mortgagor's default in paying the note. The mortgagor failing to pay the note at maturity, the mortgagee paid the amount thereof to the payee, and entered it upon his books in general account against the mortgagor, and the payee endorsed the amount as a full payment on the note, and delivered up the note to the mortgagee. The mortgagee afterwards assigned to a third person the mortgage and the obligation therein mentioned.

Held, that the assignee might maintain a bill in equity against the mortgagor for foreclosure and sale of the land under the mortgage, and for payment by the mortgagor personally of so much of the amount of the note as the proceeds of the sale under the foreclosure were insufficient to satisfy.

A stipulation in a mortgage of real estate that in case of foreclosure, the mortgagor shall pay an attorney's or solicitor's fee of one hundred dollars, is unlawful and void by the law of Michigan, as declared by the supreme court of the state, and therefore cannot be enforced in the circuit court of the United States upon a bill in equity to foreclose a mortgage, made and payable in that state, of land therein.

Bill in equity to foreclose a mortgage. The suit was commenced in a state court, and was removed to the circuit court of the United States, where a foreclosure and sale were decreed. The defendants below appealed.