Plaintiff by bill in equity seeks cancellation of a mortgage and of a sheriff's deed given on foreclosure of such mortgage. The circuit judge after a hearing on the merits dismissed the bill of complaint. Plaintiff has appealed.
The mortgage covered a 40-acre farm in Troy township, Oakland county, which farm at the time the mortgage was given (January 30, 1930) was occupied as a homestead by the mortgagor, William John Dodds, and his wife, Sarah Dodds. On that date title was in William John Dodds; but on the following day by conveyance to a third party and reconveyance to Mr. and Mrs. Dodds they purported to take title as joint tenants. The mortgage in the principal sum of $2,600 was given to the First State Savings Bank of Birmingham for money then and theretofore loaned to Mr. Dodds. Some of the borrowed money, the record does not disclose how much, was used to pay taxes on the Dodds' farm. Plaintiff's bill alleges his father borrowed money from the bank with which to pay the 1928 and 1929 taxes. At the time of giving the mortgage both Mr. and Mrs. Dodds were well advanced in years. Mrs. Dodds had suffered two or three paralytic strokes *Page 596 and her right side was paralyzed. She was assisted in signing the mortgage by placing "her mark" thereon. The death of Mr. Dodds occurred prior to that of his wife. She died June 14, 1934. Prior to her death the mortgagee, then in the hands of a receiver, instituted statutory foreclosure of the mortgage which resulted in a foreclosure sale on January 18, 1932. The year of redemption expired approximately a year and five months prior to the death of Mrs. Dodds. While there was no redemption of the mortgaged property, by the payment of rental at the rate of $100 per year Mrs. Dodds and her son, the plaintiff in this case, were permitted to remain in possession of the farm after the expiration of the period of redemption. While plaintiff recites in his bill of complaint that he was appointed and qualified as the administrator of the estate of Sarah Dodds, deceased (and this fact is admitted), still the bill of complaint is clearly one by Samuel J. Dodds in his own right, and not in any other capacity. His pleadings are signed in his individual name and in the verification under oath he states "that he is the plaintiff in the within suit."
The ground upon which plaintiff seeks cancellation of the mortgage and the sheriff's deed is alleged in his bill of complaint as follows:
"That said mortgage is invalid, void and of no effect, the signature of Sarah Dodds thereto having. been obtained by fraud and duress, and further that Sarah Dodds was not competent to execute said instrument at the time same was presented to her, nor was the said Sarah Dodds mentally competent at any time thereafter up to and including the day of her death."
It is further alleged in plaintiff's bill of complaint: *Page 597
"That the plaintiff is willing and hereby offers to do equity in the premises, fully realizing that plaintiff's parents borrowed certain moneys from the First State Savings Bank of Birmingham."
The mortgage and mortgage notes evidence the fact that they were given to secure repayment to the bank of a valid indebtedness in the principal sum of $2,600. There is nothing in the record of probative force indicating that there was not an actual indebtedness in the amount of $2,600 for money loaned. The record convincingly discloses that the fair value of this farm does not exceed $50 per acre, or a total of $2,000. After the period of redemption expired and title had become absolute in the bank, it sold this property to the defendant Elmer R. Wentworth for $1,200, a $600 down payment being made on the contract. We think it quite conclusively appears from this record that the mortgage indebtedness, which plaintiff must repay if he is to do equity, is substantially in excess of the fair value of the mortgaged property.
For the purpose of decision herein we may assume, as plaintiff asserts, that Mrs. Dodds at the time the mortgage was executed was mentally incompetent. The circuit judge so found. If plaintiff is to have any relief at all, it must be on this ground, because the evidence in the record does not sustain plaintiff's allegation of fraud or duress.
At the time the mortgage was given there were no minor children and Mrs. Dodds' interest in the land at most was then only that of a homestead right or an inchoate right of dower. So far as her homestead right is concerned, it was terminated by reason of her death prior to the filing of the bill of complaint herein. Drake v. Kinsell, 38 Mich. 232; Matson v.Melchor, 42 Mich. 477. Even if it be assumed *Page 598 that upon her husband's death her inchoate right of dower became vested or that she inherited an interest in the land (3 Comp. Laws 1929, § 13440) still as to such interest her mortgage conveyance for a valuable consideration was not void, but only voidable, notwithstanding she may have been mentally incompetent at the time the mortgage was given. Moran v. Moran,106 Mich. 8 (58 Am. St. Rep. 462); Wolcott v. ConnecticutGeneral Life Ins. Co., 137 Mich. 309; King v. Sipley, 166 Mich. 258 (34 L.R.A. [N. S.] 1058, Ann. Cas. 1912 D, 702); CochranTimber Co. v. Fisher, 190 Mich. 478 (4 A.L.R. 9). Under the circumstances plaintiff in equity would be bound to do equity; and as noted above, he has offered in his bill of complaint to do equity. But, under the facts of this case, we are unable to find that any wrong or injustice has resulted to plaintiff, or that there is any practical relief that can be given him because of the fact that it quite conclusively appears the mortgage indebtedness, which in equity he would have to pay the defendant bank, is decidedly in excess of the actual value of the mortgaged property. In other words plaintiff has not made a case from which it appears he is entitled to any equitable relief. Therefore, we conclude that the trial judge arrived at the right result in dismissing the bill of complaint.
In view of the foregoing we refrain from commenting upon the fact that under the bill of complaint as drawn whatever rights plaintiff asserts must be so asserted on the theory that a deed executed by Mr. and Mrs. Dodds the day after they executed the mortgage was a valid deed; in other words, that Mrs. Dodds was mentally competent to make a valid deed of this same farm the day after she executed the mortgage, which plaintiff claims *Page 599 was invalid because 'of Mrs. Dodds' mental incompetency.
Also, because it does not seem to have been urged in the court below nor is it stressed in the briefs filed in this court, we do not rest decision upon the question of plaintiff's right to bring this suit in his own name. It does not appear whether Mrs. Dodds died testate or intestate. It does appear from the record that plaintiff is not the only one of Mrs. Dodds' children who survived her. If the suit is prosecuted by plaintiff as an heir at law, obviously the other heirs are necessary parties. If, as counsel seems to assume, plaintiff filed this bill as the administrator of Mrs. Dodds' estate, the bill fails to allege the necessary facts to enable the administrator as such to prosecute this suit, which is an attempt to restore to the estate of Mrs. Dodds or to her heirs title to real property. Pratt v. Millard, 154 Mich. 112; In reChipman's Estate, 235 Mich. 130; In re Thompson's Estate,241 Mich. 583.
The decree entered in the circuit court is affirmed, with costs to appellees.
FEAD, WIEST, BUTZEL, BUSHNELL and TOY, JJ., concurred with NORTH, C.J.