
    THURBER v. DETROIT FIRE & MARINE INS. CO.
    1. Mortgages — Foreclosure—Moratorium—Annuities—Equity.
    Court, in granting moratorium to holder of part interest in title to rented mercantile premises upon which $40,000 mortgage was foreclosed by advertisement and which interest was subject to life annuities to two persons more than 88 years of age, held, not to have abused discretion whore amount of remaining estate subject to annuities was about $35,000, the sum of $43,241.49 was amount due a.t timo of sale and the amount bid by mortgagee and order granting relief required entire rental to bo paid receiver to be applied on mortgage debt, taxes and insurance premiums, thereby preventing mortgage debt from growing.
    2. Same — Each Case Decided on Own Facts — Abuse op Discretion.
    Each moratorium ease depends upon its particular facts and unless there is an abuse of discretion in granting a moratorium, Supreme Court will not set it aside.
    North and Wiest, JJ., dissenting.
    Appeal from 'Wayne; Toms (Robert M.), J.
    Submitted June 9, 1937.
    (Docket No. 51, Calendar No. 39,516.)
    Decided October 4, 1937.
    Bill by Fayetta Crowley Thurber against Detroit Fire & Marine Insurance Company for a moratorium in statutory foreclosure of mortgage. Decree for plaintiff. Defendant appeals.
    Affirmed.
    
      Douglas, Barbour, Desenberg & Purdy, for plaintiff.
    
      Miller, Canfield, Paddoch $ Stone, for defendant.
   Butzel, J.

The trial judge did not abuse his discretion in ordering a moratorium. Plaintiff showed that she owned an undivided one-third interest in the mortgaged property consisting of a substantial five-story building at 244 — 248 west Congress street, not far from the center of the downtown section of- Detroit ; that the mortgage of $40,000 was given to defendant by plaintiff and her sister, the sole beneficiaries of the estate of Lavinia B. Crowley, but subject to two certain annuities, the annuitants each being over 88 years of age. It further appeared that there remains undistributed in the estate, on account of the annuities, securities of approximately the value of $35,000. Defendant’s mortgage ledger shows that the time of payment of the mortgage was extended to December 30,1935, that the interest of $600 per quarter was paid until several months before the proceedings were instituted; that later on $1,305.78 was credited on the mortgage, payment being made through another mortgage; that the property was insured for the sum of $65,000. Defendant concedes that the property has a rental value of $575 per month or $6,900 per year. The mortagors, however, defaulted in the payment of taxes and defendant was obliged to pay certain taxes in full and instalments on others, brought under the five-year plan. On October 15, 1935, the date of the foreclosure sale, there was due defendant for principal and interest, taxes and legal expenses, $43,241.49, the amount of defendant’s bid at the sale. Plaintiff did not ask for moratorium until October 6,1936, but nine days prior to the expiration of the year of redemption.

Testimony was taken as to the value of the property. It was shown that at the time of the execution of the mortgage in 1929, the land was appraised at $110,000 and the building at $75,000. Subsequently, the land was appraised at $61,000 and the building at $60,000. Realtors were called to give expert testimony. Defendant’s witness, an employee in its mortgage department, sought to place a valuation on the property by deducting taxes and necessary repairs from the annual income leaving a net annual return of $4,100, which sum he multiplied by ten and thus set the value of the property at $41,000. A letter written to defendant by another realtor placed the value of the property on October 16,1936, at $65,000, and the rental value at approximately $8,000 per year. This Avas practically all the testimony given as to the present value of the property. It was, liOAvever, shown that the property was assessed at $70,930 for the city taxes for 1937. The mortgagors failed to pay taxes against the property so that in addition to the amount advanced by defendant for the purpose, taxes still unpaid amounted to $10,516.16, and if defendant were to pay this amount and add it to the balance due it for interest and payment of taxes since the mortgage sale, it would require the sum of $57,024.66 to redeem the property. It Avas, however, shoAvn that if the taxes and annual interest charges were divided by twelve, the monthly current taxes would amount to $177.53, and the monthly interest charges to $285.12, or a total of $5,551.80 for the year. At a rental value of $575 per month, or $6,900 per year, there would still be a surplus left over from which to make repairs and apply a small sum in reduction of defendant’s claim.

It is true that there are íavo annuitants, on whose account the Crowley estate is tied up so that the assets of the estate cannot be used to refinance the mortgage. However, the very advanced years of these annuitants cannot be overlooked. The judge may have taken into consideration local conditions and rising values of real estate in coming to his conelusion, but this is not shown by the record. The property brought in less than $575 per month for a considerable period. Plaintiff is not a mere interloper or speculator. The mortgagors, however, have not been entirely without fault, and we would come to a different conclusion Avere it not that under the order of the court, all the rents must, be turned over to the receiver, who, after payment of necessary expenses, is ordered to pay over the net proceeds to defendant to be credited by it upon the sums due or to become due it or to be paid on taxes theretofore or thereafter to become due, and also to pay insurance premiums. The defendant’s debt thus will not grow any larger during the moratorium period, and there appears to be an equity that plaintiff may possibly save. Each moratorium case depends upon its particular facts. Unless there is an abuse of discretion by the court in granting a moratorium, we decline to set it aside. There ivas no such abuse in the instant case.

The order is affirmed, with costs to plaintiff.

Fead, C. J., and Bushnell, Sharpe, Potter, and Chandler, JJ., concurred with Butzel, J.

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. 
      
       Application made on October 3, 1936, was filed October 6, 1936.— Reporter.
     