AMERICAN INSURANCE COMPANY . GILBERT.

in substance, that inasmuch as Prentice, by his contract, had undertaken to convey to plaintiff a good title, and was therefore bound to pay off the amount due on this mortgage, and would not be entitled to the four thousand dollars from the plaintiff until he had done so, and could only recover the four thousand dollars less the sum due on that mortgage, the latter was, in legal effect, included in the statement of the four thousand dollar mortgage to Prentice; and as it seemed to be conceded that the sum due Prentice on the contract was what was intended as the four thousand dollar mortgage, we think this charge substantially correct. I do not see the force of the objection argued by the counsel for the plaintiff in error: "Suppose," he says, "that Gilbert should pay the whole purchase price, relying on Prentice to remove the mortgage lien, and Prentice should not pay it, and allow it to be foreclosed; or suppose the holder should foreclose and Gilbert refuse to pay the amount of the four thousand dollars, choosing to rely on the personal responsibility of Prentice to carry out the contract, and Prentice also refuses to pay, then the land may be sold and Gilbert driven to a personal action against Prentice."

But all this might equally happen if the mortgage had been mentioned; and such suppositions rest upon no different ground from one which supposes Gilbert may fail, or not choose to pay the contract price to Prentice, which included this mortgage; and that his rights may thus be lost. And in case Gilbert should fail or be likely not to pay the contract price, and the insurance company should seek to be subrogated to his rights, the mortgage debt would, as to them, also constitute a part of the purchase price yet coming to Prentice; and they could avail themselves of it as so much payment. The omission to state this fact, within the express provision of the policy, could not prejudice the plaintiff, unless the existence of the mortgage debt to Smalley was "material to the risk;" and we think it so clear that it was not material, that it was quite

AMERICAN INSURANCE COMPANY 7. GILBERT.

unnecessary to submit to the jury the question of its materiality.

Several other questions were raised by the exceptions and assignments of error, but as they were not relied upon on the argument, it is unnecessary to notice them.

The judgment must be reversed, with costs, and a new trial awarded.

The other Justices concurred.

Nathan S. Crane v. William H. Grassman.

Declaration: Consideration: Evidence. It is not essential that a declaration upon the common counts in assumpsit should set forth what was the consideration for an alleged promise; and an objection to evidence of the consideration, upon that ground, is untenable. Declaration: Common counts: Landlord and tenant: Promise to pay for repairs. One who has made repairs upon his own store under an arrangement with his tenant that he should make such repairs, and that the tenant might thereupon surrender his lease, and in consideration thereof should pay him for the repairs, may recover of the tenant the cost of the repairs, under the common counts in assumpsit, without setting up the special circumstances.

Submitted on briefs July 8. Decided July 15.

Error to Lenawee Circuit.

George L. Bachman, for plaintiff in error.

Greenly & Stearns, for defendant in error.

GRAVES, J.

Grassman sued Crane before a justice, and declared upon all the common counts in assumpsit, and "especially for work, labor, services and materials furnished in repairing the store of plaintiff, lately occupied by defendant, in

CRANE V. GEASSMAN.

the city of Adrian, so as to put it in as good condition as when first occupied by defendant." The plea was the general issue. After trial before the justice, the case was carried, by appeal, to the circuit court, where it was tried upon the same pleadings, before a jury.

It appeared that the defendant had held a lease of the plaintiff's store, and that the parties made an arrangement for a surrender, and the plaintiff claimed that when this took place the building needed some little repairs to make it tenantable, and that the defendant then agreed that the plaintiff might make them, and that when made he would pay for them. The plaintiff further claimed that he made the repairs, and that they cost and were worth twentythree dollars and fifteen cents; and there was evidence tending to support these claims.

The defendant claimed that he only agreed to pay for repairs to the extent of four or five dollars, and there was evidence tending to support this position.

As we look at the record there is but a single question in the case.

The defendant objected that the declaration set forth no consideration for the alleged promise to pay for repairs, and that therefore all testimony on that subject should be excluded. This objection was untenable. The declaration. contained the common counts, and it was not necessary that they should explain what the consideration consisted of. That was matter of evidence.

The court in effect charged that if the agreement, as claimed by the plaintiff, was made, and the repairs done under it, the defendant was liable; and this was correct. Assuming, what the jury must have found, that the defendant, in consideration of the giving up of the lease, promised to pay for the repairs when made, and that the plaintiff had in fact made them, there was nothing behind but the payment of the price in money, and to recover this the plaintiff was at liberty to declare generally, upon the common counts, and was not required to set up special

CRANE V. GRASSMAN.

circumstances.-2 Greenleaf Ev., § 104, and authorities

cited.

There is no error, and the judgment must be affirmed, with costs.

COOLEY, J., and CHRISTIANCY, CH. J., concurred.

CAMPBELL, J., did not sit in this case.

Hugh McCurdy v. Eliza G. Clark and another.

Mortgages payable in instalments. Where several distinct payments are secured by one mortgage, no one of them has any preference over the rest in consequence of its falling due sooner, but all have equal claims to be paid ratably out of the land.

Mortgages payable in instalments: Foreclosure by advertisement. Under our statute (Comp. L., § 6913), a mortgage payable in instalments stands upon the same basis as to foreclosure, as if each instalment were secured by a separate and independent mortgage, neither having priority over any others; and a foreclosure under the power of sale, for an instalment simply, is entirely unsuited to the enforcement of the respective liens, or the adjustment of the respective interests.

Foreclosure by advertisement for an instalment. Such a sale, expressly made subject to the subsequent instalments, will leave such instalments a lien on the land as against both the mortgagor and the purchaser at the sale.

Such a sale, not made subject to the subsequent instalments, will bar only the equity of redemption of the mortgagor and subsequent purchasers and incumbrancers, and will not cut off the other instalments; and a subsequent foreclosure for another instalment would do nothing towards an adjustment of the respective interests of the parties; if each bid off the whole land, neither would become owner of any particular part thereof, or of any definite undivided interest therein, but each would still have a lien, which, though foreclosed as to those holding subordinate rights, would remain, as to the other, a mere lien; neither could redeem from the other, and neither would gain or lose precedence or position by the foreclosure sale. Practice in supreme court: Costs. In this case, the decree below having been modified on appeal, each party being held to have been in error from the beginning, no costs were awarded to either party.

Submitted on briefs July 8. Decided July 15.

Appeal in Chancery from Shiawassee Circuit.

MCCURDY V. CLARK.

S. B. Raynale, for complainant.

A. C. Baldwin, for defendants.

COOLEY, J.

This case involves some novel questions under the statute for the foreclosure of mortgages by advertisement.

March 17, 1863, Henry Drum gave a mortgage to Eliza G. Clark, on lands in the county of Shiawassee, to secure the payment of a note for five hundred dollars, payable with interest in ten equal annual instalments; the first to be paid November 1, 1864. January 25, 1869, the mortgagee caused the premises to be advertised for sale under the power of sale contained in the mortgage, to satisfy the instalment which fell due November 1, 1868, and they were sold accordingly, and bid off by complainant McCurdy, for the instalment mentioned and the costs. Neither in the notice of sale, nor by any one at the time of the sale, does any thing appear to have been said about the instalments still to come due, and the whole land was sold. The instalment falling due November 1st, 1869, was not paid, and the mortgagee, through defendant Bowman, with whom she had left the mortgage to secure an advance, took proceedings in a like foreclosure for that instalment, and Bowman became purchaser. McCurdy then setting up a claim to the land discharged of any further lien by virtue of the mortgage, Bowman deemed it advisable to redeem from the sale to McCurdy, and paid to the register of deeds the amount of McCurdy's bid, with interest. McCurdy refused to receive this money, and filed his bill to enjoin the completion of Bowman's purchase, and to have that and the pretended redemption declared ineffectual. In the court below this bill has been sustained.

McCurdy insists that when a mortgage is foreclosed for one instalment, and others are to fall due upon it, a sale of the land for that instalment discharges it of the lien of the mortgage entirely, unless the sale is made expressly sub