
    WALKER v. WAYNE CIRCUIT JUDGE.
    Mortgages—Assignment or Decree.
    After decree in a mortgage foreclosure suit, one of the mortgagors applied to B. for §3,000 to purchase the decree. B. paid that amount to the mortgagee, and one of the mortgagors paid the necessary balance, and B. took from the mortgagee an assignment of the mortgage and decree. There was no agreement as to when the §3,000 should be repaid, or extending time before which sale should he made, or limiting the right of B. in any way to enforce the decree. Held, that this did not amount to the making of a new mortgage, so as to require a new decree before sale.
    
      Mandamus by Bryant Walker, administrator, etc., to compel Willard M. Lillibridge, circuit judge of Wayne county, to vacate an order restraining a foreclosure sale.
    Submitted April 6, 1897.
    Writ granted April 27, 1897.
    
      Walker & Spalding, for relator.
    
      S. W. Burroughs and Moore & Moore, for respondent.
   Long, C. J.

In 1886, George T. Burroughs executed and delivered to the People’s Savings Bank of Detroit a mortgage, upon certain real estate described therein, conditioned for the payment of $3,000 three years after date, with interest at 7 per cent., payable semi-annually. Default having been made, the mortgage was duly foreclosed in chancery, and a decree entered therein. The defendant, not being able to pay the decree, applied to Mrs. Caroline M. Beecher on March 24, 1892, for $3,000, to purchase said decree. Mrs. Beecher paid the $3,000 to the bank; Mrs. Lucie E. Burroughs, one of the defendants in the foreclosure, paying the balance to the bank of $707.65. Mrs. Beecher took from the bank an assignment of the mortgage and decree. No agreement was made as to the time when the $3,000 should be repaid, nor was any agreement made extending the time before which a sale should be made under said decree, or limiting the right of Mrs. Beecher in any way to enforce the decree, and no obligation whatever was taken from Mrs. Lucie E. Burroughs for the moneys so advanced. Subsequently Mrs. Beecher assigned the mortgage and decree to Mr. E. C. Walker, administrator, etc. On notice to the defendants in the decree, the cause was revived in the name of Mr. Walker. Subsequent to that time Mr. Walker died, and proceedings were duly taken, and the cause was revived in the name of the relator as administrator. Interest was paid from time to time upon the decree up to April 25, 1896. No interest since that date has been paid. There is no uncertainty about the amount due and unpaid upon the decree. On February 5, 1897, in pursuance of the terms of the decree, the relator commenced to advertise the sale of the lands described in the decree for the purpose of satisfying the amount of the decree and interest. On February 27th, Lucie E. Burroughs filed a petition in the cause for an order restraining the relator from selling under the decree, the claim being that the assignment of the decree and mortgage under the circumstances here stated amounted to the making of a new mortgage of $3,000, and that, therefore, a new proceeding for foreclosure must be had before sale. The relator answered the petition, and upon the petition and answer the court enjoined the sale. Application is made here for mandamus to compel the respondent to set aside that order, and allow the sale to proceed under the decree. We think the court below was in error in holding that a new foreclosure must be had before sale could be made. The assignment of the decree under the circumstances herein stated did not operate to discharge the decree, and make a new mortgage. The parties had had their day-in court under the foreclosure. The amount due on the mortgage had been adjudicated, and the mortgage was merged in the decree, which finally determined the amount of the defendant’s indebtedness. Wallace v. Field, 56 Mich. 3. The amount of the indebtedness was not changed by the assignment, and the payment upon the decree only lessened its amount. It did not change the character of the decree. If the moneys had been paid by Mrs. Burroughs to the bank, confessedly the bank could have sold for the balance due on the decree without another foreclosure. The assignment to Mrs. Beecher, and from her to Mr. Walker, and the transfer from him to the relator, put the relator in the same position that the bank stood, and with the same right to sell under the decree.

The writ must issue as prayed.

The other Justices concurred.  