Butters v. Butters

153 Mich. 153 | Mich. | 1908

Ostrander, J.

(after stating the facts). As the record before us is understood, the petition (it seems also to have been called a bill) of complainant to set aside the foreclosure sale contained, in substance, the same averments found in the bill now filed. It was answered by Adam Butters. George Butters was made a party and being then, and now, a resident of Canada, an order for his appearance was made and duly published and he appeared and moved to dismiss the petition upon the ground that an original bill should have been filed, since the purchaser at the foreclosure sale was not a party to the foreclosure suit. The order made in that matter, dated October 33, 1905, reads:

“This matter came on to be heard on application to dismiss the petition filed by the defendant, Janet Butters, on the 16th day of July, 1903, to set aside the foreclosure sale under the mortgage referred to in the complainant’s bill of complaint, had on the 13th day of September, 1903, and all the persons interested in said application being present in court and represented by their respective counsel, and the court having heard the arguments of said counsel; ordered that the said petition be and it hereby is, dismissed, without costs. ”

Counsel for Mrs. Butters in that proceeding testified in the case at bar that they were convinced that they had mistaken their remedy and supposed an order would be entered so stating. It would appear that the case of Crawford v. Tuller, 35 Mich. 57, was regarded as decisive of the question. It appears, also, that the complainant in the foreclosure suit was beyond the jurisdiction of the court and she had the money paid by the purchaser at the foreclosure sale. See, also, Bending v. Auditor General, 137 Mich. 500; Jewett v. Morris, 41 Mich. 689. It will be noticed that in all of these cases the decree was attacked and sought to be set aside. In the case at bar, the decree is not attacked. A court of chancery has inherent power to set aside sales made by its order whether the property is bid in by a party to the suit or by a stranger. Indeed, the practice requires every sale to be reported to the court and an order confirming it. And if it is sought to vacate a confirming order and to obtain a resale of property, the manner of bringing a grievance to the attention of the court is not of particular importance so long as new rights have not intervened and the original parties to the suit and the purchaser have notice and opportunity to be heard. In the matter of the petition to open this sale, an affidavit of the non-residence of the purchaser was made,.an order for his appearance was made and published, and that he had notice of the proceeding is evident. No more has been done in the pending case. There does not appear- to be any reason to deny the power of the court to determine the matter presented by the petition upon the merits, if complainant was within the jurisdiction of the court. But if she was not, and if that was a ground for refusing relief, it is singular that, having now pursued the method of filing an original bill, the complainant in the foreclosure suit should not be made a party defendant. We shall assume that the matter of the petition to set aside the sale was not determined on the merits and that the plea was properly overruled.

The case affords abundant evidence of the wisdom of the rules which require parties to litigation to use the opportunities afforded them to assert their rights, to discover and promptly inform the courts of irregularities. We are not impressed with the testimony introduced to show that when the mortgage foreclosure was begun, complainant had homestead rights in lot 264. She is now asserting rights based upon her deed of the lot. But if she claimed such rights she should have presented the claim in the foreclosure case and this is true, also, of her right, if she had it, to have lot 265 first sold to satisfy the mortgage. Before and during the period of the foreclosure proceeding, complainant and her husband were adversaries. She sought to have allowed to her a portion of this property. Lot 264 was awarded her, subject to a lien of $1,000. Her divorce suit was pending in the same court which had jurisdiction of the foreclosure suit. It does not appear that the judge who allowed her alimony had his attention called to the fact that a sale of the premises occurred two months earlier. The purchaser, a stranger to the foreclosure suit, had bid in the property and paid the mortgage indebtedness. And complainant did not accept the provision made for her by the court. Instead, she accepted a deed from her husband of lot 264 and his covenant to pay the liens thereon. Both her deed and her husband’s separate undertaking recited the fact that George Butters was then the lien holder, and that both lots were subject to these incumbrances. Becoming satisfied later that her husband did not propose to protect her, she set about securing lot 264 discharged from the incumbrances, first by application to George, later by borrowing money to redeem her own lot from the foreclosure sale. It does not appear that she ever intended to redeem lot 264 from the levy.

It is contended that the sale was void. We need not inquire whether Act No. 200, Pub. Acts 1899, requires lands sold under the usual decrees made by courts of chancery to be sold in parcels, making the decisions of this court in Lee v. Mason, 10 Mich. 403; Udell v. Kahn, 31 Mich. 195, applicable to such sales, because it does not appear that if the sale had been made in a statutory foreclosure proceeding it would have been void. It is true that there are two lots and two houses and a barn, but one house stands upon both lots, and a portion of lot 265 has been otherwise used with lot 264. Undoubtedly the court might have made a subdivision of the property and provided in the decree for a sale of each subdivision. It did not do so and was not asked to do so. Nor was the court in the divorce proceeding asked to make boundaries of the property, although in the decision made the description was not inserted. The agreement, herein set out, made after the sale, indicates the desirability of a single ownership and holding of the property. Counsel for complainant ask in the brief that defendant George Butters be required to deed to complainant lot 264 as occupied, she paying for a portion of lot 265 at a price to be fixed. When the property was sold, both houses were tenanted. The testimony tends to prove that the conditions were discovered on the day of the sale and that in view of them the commissioner sold the property as one parcel.

The deed, by inadvertence, was not recorded within the period of redemption, and it is contended that this fact and the provisions of Act No. 200, Pub. Acts 1899, bring the case within the rule of Doyle v. Howard, 16 Mich. 261. The reasons given in the opinion in that case for holding the provisions of the statute to be mandatory apply, some of them, with equal force in case of a chancery foreclosure. But the principal and controlling reasons do not apply. Foreclosure proceedings by advertisement are confined to cases in which the mortgage contains a power of sale. The proceedings are wholly ex parte and non-judicial. The office of the register of deeds may be the only place where an interested person may learn whether a sale has been made and of the terms thereof. A chancery foreclosure is a judicial proceeding. There is other written evidence of the sale than that afforded by the deed. The flies and records in the office of the register in chancery furnish the most complete information upon the subject. Judicial confirmation of the sale is required and this may be denied after the deed has been filed with the register in obedience to the statute. Trombley v. Klersy, 147 Mich. 370. Parties to the suit who have been served with the process of the court are permitted and expected to file objections to the report of sale and bring them to the attention of the court. It is not probable that anyone would attempt to redeem from such a sale without acquiring the knowledge disclosed by the record in the foreclosure suit. And one desiring and having the right to redeem, finding no deed of record and unable to reach the accredited purchaser, could protect himself by the information easily accessible, either by a deposit of the necessary amount, or by a proceeding in the court having jurisdiction of the matter. The statute procedure should be followed and it is unnecessary to indicate here the consequences of disobeying it further than this, that one who is a party to the foreclosure suit, who has been neither deceived into inaction nor prevented from redeeming, may not rely upon such disobedience for the purpose of securing a resale of the property. In saying this, we necessarily decline to apply the rule of the case cited to chancery foreclosures. We are of opinion that we have no authority to set aside the sale either because the property was not sold in parcels or because the deed was not filed in the office of the register of deeds.

As to the alleged collusion of Adam and George Butters. The testimony does not lead to the conclusion that defendant Adam Butters was not indebted to his brother George, or that the judgment, the basis of the levy, was not regular and legally effective. His good faith is not inconsistent with regard for, reliance upon, and trust in, his brother. It is probable that Adam would prefer that his brother should secure himself rather than that his wife should succeed in securing a part of the property. His conduct in dealing with his wife, as it is disclosed by the record, warrants the statement.

The land, all of it,- came to Adam from his father, as did the dwelling on lot 265. He is, and for years has been, employed as an engineer at a salary of more than $60 a month. He has no other property. If the domestic problem were eliminated, it is clear that as such matters are usually conducted there need have been no foreclosure of the mortgage. The property was abundant security for the debt, and the income of the husband and the rent of one of the houses furnished money to pay interest. We may assume that if the family relations had remained pleasant, the foreclosure would not have taken place. We may assume, also, that the husband was at fault and the proceeding begun by the wife was a meritorious one. But, as has been pointed out, the debts of the husband and. the demands of the wife against the property rendered the value of his resulting equity wholly uncertain. Unless his debts could be again secured, which would have required the consent of complainant, he could not save the property. It does not appear that complainant ever proposed joint action in this behalf. A carefully studied effort on her part to avoid the use of means calculated to secure for herself a portion of the estate could not have been more successful in defeating what the court is now asked to bring about. How she expected her husband to perform the covenant she accepted from him with her deed of lot 264, is not disclosed. He could have performed it by securing the money, if that was possible, as a loan upon a portion of lot 265. Assuming that lot 265, as occupied, is worth $4,500, there would have remained to him an interest in the property worth about $1,000 to be secured only by payment .of an annual interest charge of more than $200 and an eventual payment of the principal, or sale of the premises. Complainant, by the same means, would have received premises worth $2,500. It may be said that the legal obligation of the husband required him to attempt to pursue the course suggested. That he did not do so is not a ground for divesting the purchaser of his title acquired at the foreclosure sale and ordering a resale of the premises.

While a reading of the record excites sympathy for complainant, it does not make out the case stated in the :bill of complaint. We feel obliged to affirm the decree of the court below, with costs to defendant George Butters.

Blair, ■ Hooker, Moore, and McAlvay, JJ., concurred.