The land sale that wasn’t

Reader Denny Mellott’s ancestors ran into some hard times in Michigan.

Financial problems landed those ancestors — John and Elizabeth Schaub of Leelanau County — in the legal notices columns of the Leelanau Enterprise twice.

And that’s exactly why Denny was confused.

The first time the Schaubs’ financial dirty linen was aired was in 1890. On the 26th of June, in the legal notices of the local newspaper, there was a Notice of Mortgage Sale.

Schaub land noticePlaced by the attorneys for the Hannah & Lay Mercantile Company, the notice recited that a mortgage had been given by J.A. Schaub and Elizabeth Schaub on property described as the south half of the northwest quarter of section 7 in township 29 north of range 11 west on 3 August 1887, and the couple had defaulted on a payment due in the amount of $215.30. Because the mortgage had a power of sale clause, the attorneys said they intended to sell the property at auction on Saturday 2 August 1890.1

The second time the Schaubs’ financial dirty linen was aired was in 1897. On the 4th of February, in the legal notices, there was another Notice of Mortgage Sale.

Placed by the attorneys for Herman Hyman, the notice recited that a mortgage had been given by J.A. Schaub and Elizabeth Schaub on property described as the south half of the northwest quarter of section 7 in township 29 north of range 11 west on 23 March 1896, and the couple had defaulted on a payment due in the amount of $99.17. Because that mortgage also had a power of sale clause, the attorneys said they intended to sell the property at auction on Saturday 24 April 1897.2

Now wait just a minute here.

If the land was sold out from under John and Elizabeth in 1890, how could it be sold out from under them again in 1897?

And you want to make it even more confusing?

John and Elizabeth were still living on the farm they owned, subject to a mortgage, in 1900. John was enumerated as a 51-year-old farmer born in New York of German parents; Elizabeth as a 54-year-old born in Canada. Living with them were five of their 11 surviving children. (The census says Elizabeth had had 13 children, with 11 surviving.)3

That’s the same land they’d been living on in 1880.4 It was a 68.36-acre tract issued to them by the federal government under the Homestead Act. That south half of the northwest quarter of section 7 in township 29 north of range 11 west had been patented to John Schaub on 10 December 1880.5

And since you had to live on and improve the land for some time to perfect your title under the Homestead Act,6 we know they’d been living there for some years before they got the patent.

But how did they still live there years after it was supposed to be sold… twice? Or, as Denny put it: “from what I saw this happened in 1890 and again in 1897 for the same property. What was sold to pay the mortgage?”

Easy.

Nothing.

Or, at any rate, not the land.

It was never sold. Not because of those missed mortgage payments at any rate.

You see, Michigan state law at the time absolutely did allow the mortgage holder whose mortgage contained the power of sale clause referenced here to foreclose on the property by just the kind of notice that was advertised here.7

But the notice couldn’t just be published once or twice or even three times: it had to be published for 12 successive weeks,8 and there’s no evidence either of these appeared in the paper that many times.

Even if it was properly advertised that many times, the one person who had the absolute right to buy the land at the sale — usually for the amount owing on the mortgage — was the mortgagee.9

And even if he didn’t buy it at the sale, he had a year to redeem the land — get it back at the sale price10 — and the redemption period usually had to expire before any other buyer at a sale like this could even take possession of the land. If the original owner did, the recorder of deeds would destroy any deed issued to the other buyer, leaving that original owner with title.

In other words, this really wasn’t a system to easily and simply take land away from people. It was much more a system to put everybody on notice that the mortgage holder could do just that if the debtor didn’t bring the mortgage payments current.

Neither the mercantile company nor the second creditor really wanted to deal with the land. They wanted to get paid.

And, it certainly appears, the Schaubs paid up.

So the answer to your question, Denny, as to what was sold is this: not the land. It may well have been that your ancestors had to wait for a crop to come in to pay off their debts or for someone else to pay a debt to them, but pay they did.

If you want to be 100% sure, you can check the Leelanau County, Michigan, land records to see exactly when the land passed out of the Schaub family, by sale or otherwise.

But whenever that was, it sure wasn’t because of these notices in 1890 or 1897.


SOURCES

  1. “Notice of Mortgage Sale,” Leelanau Enterprise, 26 June 1890, p. 8, col. 3; digital images, Digital Michigan Newspapers, Central Michigan University (https://digmichnews.cmich.edu/ : accessed 24 July 2018).
  2. “Notice of Mortgage Sale,” Leelanau Enterprise, 4 February 1897, p. 12, col. 2; digital images, Digital Michigan Newspapers, Central Michigan University (https://digmichnews.cmich.edu/ : accessed 24 July 2018).
  3. 1900 U.S. census, Leelanau County, Michigan, Bingham, population schedule, enumeration district (ED) 17, p. 100(A) (stamped), dwelling 86, family 96, John A. Schaub household; digital image, Ancestry.com (https://www.ancestry.com : accessed 24 July 2018); citing National Archive microfilm publication T623, roll 724.
  4. See 1880 U.S. census, Leelanau County, Michigan, Bingham, population schedule, enumeration district (ED) 157, p. 440(C)(stamped), dwelling 61, family 63, John A. Schaub household; digital image, Ancestry.com (https://www.ancestry.com : accessed 24 July 2018); citing National Archive microfilm publication T9, roll 589.
  5. Land Patent No. 220, Homestead Certificate 4284, John A. Schaub, 68.36 acres, Reed City (Michigan) Land Office; General Land Office Records, Bureau of Land Management, U.S. Department of the Interior (https://glorecords.blm.gov/ : accessed 24 July 2018).
  6. The patent was not to issue until five years after entry on the land. See §2, Homestead Act of 1862, 12 Stat. 362 (20 May 1862).
  7. §8497-8498, Chapter 293, “Foreclosure of Mortgages by Advertisement,” in Andrew Howell, compiler, The General Statutes of the State of Michigan… 1882 (Chicago: Callaghan & Co., 1883), II: 2087 et seq.; digital images, Google Books (https://books.google.com : accessed 24 July 2018).
  8. Ibid. §8499.
  9. Ibid., §8504.
  10. Ibid., §8507.
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