60 Mich. 318 | Mich. | 1886
The defendant recovered a judgment in an
On the trial both parties claimed title through a common source. The plaintiff was the owner in fee by a purchase from Garret B. Hunt and Henry S. Cunningham, made on the seventh day of November, 1865. On the same day he executed and delivered to his vendors a mortgage upon the lands purchased, to secure the payment of the purchase price. Defendant claims title through a foreclosure in chancery of this mortgage. The defendant, as a part of his defense, offered in evidence the files and records in the foreclosure proceedings, which showed that the bill to foreclose the mortgage was filed on the fifteenth day of December, 1869 ; that Garret B. Hunt and Ilenry S. Cunningham were complainants, and Palmer Colton was defendant. The record offered was the enrollment, and also, in that connection, the order taking the bill as confessed, recorded in the common order-book, on page 41.
Pour objections were taken to the introduction of the evidence, namely:
1. Because the court acquired no jurisdiction of the defendant: there was no personal service made on the defendant, and the affidavit upon which the commissioner made his order for the appearance of the defendant shows no facts authorizing the commissioner to make such order.
2. That the order of the commissioner was void on its face, as it required the defendant to enter his appearance within two months from the date of such order, and the order shows that the defendant is a non-resident of this State.
3. That the order was not published for the time required by law.
. 4. That it appears from the files in this case that there was no evidence offered before the commissioner by the complainants as to payments, etc.; that as there was no appearance of the defendants, the decree could not be granted, under the law, without the complainants being sworn as to payments.
The first three objections are aimed at the jurisdiction of the court over the person of defendant; the last, to error in ■the proceedings. The fourth objection does not involve the
The subpoena to appear and answer was issued on the fifteenth day of December, 1869, and was returnable on the ■twenty-seventh day of December, 1869. It was delivered to the sheriff, who, by his under-sheriff, returned on the return-day thereof, that the subpoena could not be served upon the defendant, Palmer Oolton, because he could not be found in his jurisdiction; and that he had made diligent search for said defendant,
“Richard Winsor, being duly sworn, deposes and says: That he i§ solicitor for complainant in the above-entitled cause; tint: the subpoena issued in this cause cannot be served on the defendant by reason of his absence from this State. And deponent further says that the said Palmer Colton, as he is informed and believes, resides at Erie, in the state of Pennsylvania; and further deponent says not.”
The principle is well settled in this State that the statute authorizing substituted service of process, must be strictly complied with in order to confer jurisdiction upon the court over the property of the defendant which the suit is instituted to reach and subject to the payment of his debt; and it has been held that the affidavit required must show every fact necessary to give the officer jurisdiction to make the order for appearance. Platt v. Stewart, 10 Mich. 260; King v. Harrington, 14 Mich. 532.
In this case the affidavit is positive that the subpoena could not be served upon the defendant by reason of his absence from the State. The place of defendant’s residence is stated upon information and belief to be at Erie, in the state of Pennsylvania. The objection urged is that this statement does not amount to proof ; that deponent should, at least, have given the source of his information. But there is no
Good practice requires that the name of* the informant, or the source from which the information is derived, should be stated, not as affording any additional weight to the affidavit as evidence, but as a safe-guard and check against false and reckless swearing. The very nature of the facts to be proved are often such that an affidavit upon information or belief is all that can be adduced in the case. The residence of the party may be unknown, and the most diligent search and inquiry fail to elicit any information upon the subject. A defendant may be a non-resident when the mortgage was executed, and that fact may appear upon the face of the mortgage, as was the case here; and yet, when the suit is commenced, it may not be known whether he has changed his residence either to this or some other state. In such case an affidavit upon information and belief is all that could reasonably be required. To require that such proof should be established by such evidence as would preclude all reasonable doubt, or of such character and weight as would preclude a possibility of error, would deprive -this provision of the statute, in a large majority of cases, of any efficacy, and result in a failure of the remedy designed to be afforded by the law. The law itself is based upon the necessity of the case, in order to enable parties to reach and deal with property within the jurisdiction of the court. No personal decree can be taken. It is-in aid of justice, and the rights of the absent defendant are carefully preserved in cases where a decree has been entered in the cause. He or his representatives may appear and be admitted to answer the complainant’s bill upon paying ox-securing the costs, and the cause shall then proceed as if he had appeared in due season ; but this appearance must be made in one year after notice in writing of the decree has been given to him, and within seven years after the making of the decree when such notice shall not have been given.
“No sale and conveyance, regularly made under the preceding provisions, upon a bill for the foreclosure and satisfac'.ion of a mortgage, shall be affected or prejudiced by the appearance of the defendant within one year, or the seven years hereinbefore specified, nor by any other proceeding; but such defendant or his representatives may, at any time within seven years after the decree ordering such sale, file a bill against the complainant or his representatives, to account for all moneys received by him or them by virtue of such decree, over and above the amount justly due on the mortgage, and costs of suit; and the court shall proceed on such bill according to the equity of the case.”
I shall have occasion to refer to these provisions of the law when I come to the consideration of another branch of the defendant’s case.
The record shows that the subpoena was duly issued, and placed in the hands of the proper officer for service, and it could not be served because of the absence of the defendant from the jurisdiction of the officer. In this respect the proceedings were regular, and were free from the infirmity which existed in the case of Soule v. Hough, 45 Mich. 418. The affidavit of non-residence was sufficient, within the unanimous opinion of this Court expressed in the case of Pettiford v. Zoellner, 45 Mich. 358. The reasons there given for holding an affidavit like the one in question here good, and the evils which would result from a contrary doctrine in the unsettling of titles in this State, are conclusive and satisfactory to my mind.
The second point taken by plaintiff’s counsel is also disposed of by the case of Pettiford v. Zoellner. The Legislature has very wisely amended the statute so as to avoid any uncertainty in the construction which should be placed upon it as it formerly stood.
Was the order published for the time required by law?
The affidavit shows that it was published for six successive weeks, commencing on the sixth day of January, A. D. 1870, and ending on the tenth day of February, A. D. 1870. The
The defendants also introduced the files of the paper in which the order was published, and they were received in evidence against plaintiff’s objection that the same were incompetent. It is competent to show the fact of publication by the introduction of the published papers containing the notice or order. These papers showed a publication of the order on the sixth, thirteenth, twentieth, and twenty-seventh days of January, and on the third and tenth days of February, 1870; and they also showed an error in the name of one of the complainants, which ran through the first three publications. in which the name of Garrett B. Hunt was printed “ Grant B. Hunt.” It needs no argument to demonstrate that a cause entitled, “ Grant B. Hunt and Henry S. Cunningham against Palmer Colton,” is not the same cause as one entitled, “ Garrett B. Hunt and Henry' S. Cunningham against Palmer Colton.” It was the cause last entitled in which the order was made, and this order was published but three times. The order made was never published six weeks. The entitling was a material part of the order, as the body of the order referred to it, and the complainant’s name appeared-nowhere else. The language of the order is: “ That the said defendant cause his appearance to be entered in this cause within two months from the date of this order, or, in default thereof, that the said bill of complaint be taken as confessed by said defendant.” There was a plain failure to comply cither with the terms of the statute or of the order made in pursuance of it; and unless the defendant in that suit has done some act, based upon the foreclosure, which has estopped him from now insisting upon the illegality of the proceedings, they cannot be sustained.
The defendant in this suit claims that the plaintiff is legally and equitably estopped by facts-and circumstances, substantially as follows: The mortgagees became the purchasers of the mortgaged premises at a sale made in pursuance of the decree made therein, on the twenty-first day of January, A. D.
The plaintiff was aware more than ten years before the commencement of this suit of the sale under the foreclosure proceedings. He took no steps to set them aside, or challenge their validity. If the proceedings were irregular, as now alleged by him, he could have appeared within seven years after the decree, and had the same set aside, and defended against the suit. He received full notice of the sale in less than two years after it had been consummated. If the foreclosure had been regular, the defendant, Colton, could not, at any time, have questioned the sale, but he could have filed his bill of complaint for an account of the monej's received by Hunt and Cunningham on the sale, and would have been entitled to receive the surplus moneys over and above the amount justly due them on the mortgage, and costs of suit.
His conduct comes clearly within the principle enunciated in Cairncross v. Lorimer, 7 Jur. (N. S.) 149, and quoted with approval in Truesdail v. Ward, 24 Mich. 134, as follows :
“ It is a'universal law that if a man, either by word or by conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those-who have so given faith to his words, or to the fair inference to be drawn from his conduct.”
The testimony by which the settlement in 1872 was made-to appear, was established by the depositions of Garrett B. Hunt and Henry S. Ounning-liatn, taken before a notary public for the county of Erie, in the state of New York, to the introduction of which iu evidence upon the trial the following objections were made, viz.:
(1) Because the copy of the notice to take depositions was not served by the defendant, or his attorney, or by an officer, or by any one duly authorized by the defendant to serve the' same.
(2) Because the copy of the notice served was not attested or verified by any pel-son.
(3) Because the copy of the notice served did not purport to be a true copy of the original notice to take the depositions, or the copy of any notice.
(4) Because there is no clerk’s certificate attached to said depositions, as required by law, certifying that the person-before whom* the depositions purport to be taken was authorized by law to take such depositions.
The certificate attached to the depositions purported to be the certificate of Robert B. Foote, clerk of Erie county, blew York, and of the courts thereof, being courts of record. It was in due form and substance, and was signed by J. E. Ewell, deputy-clerk, and was under the seal of the court. In effect, it was the certificate of Robert B. Foote, clerk, by J. E. Ewell, deputy-clerk. ¥e think it was a sufficient authentication under the statute.
We do not feel called upon to pass upon the question as to whether the action could be maintained without a previous demand of possession, under our decisions in Reading v. Waterman, 46 Mich. 109, and Sinclair v. Learned, 51 Mich. 335, as the point was not raised in the court below, nor does it arise herein the view we take of the facts creating an estoppel ; and for the same reason we do not find it necessary to decide whether the five-years statute of limitation should be held to apply to this case.
Other objections were taken to the regularity of the proceedings upon the sale — such as not selling in parcels, and the absence of filing upon the back of the report of sale found among the papers, and the absence of an order of confirmation of the sale, — but they have been covered by previous decisions of this Court, or by what has been said above respecting the estoppel, and need not be particularized here : King v. Harrington, 14 Mich. 532; Vaughn v. Nims, 36 Mich. 297.
The judgment must be affirmed ; and, as this is an action of ejectment, the cause must be remanded to the circuit.
The certificate of service shows that such “ diligent search ” was continued up to the return day of the subpoena.
As to necessity of certificate, see Thompson v. Clay, 60 Mich. 627