Comstock v. Comstock

24 Mich. 39 | Mich. | 1871

Per Curiam.

The parties went to a hearing in the court below on pleadings and proofs; the point chiefly in controversy being, whether a deed to Andrew TV. Comstock, was a subsequent conveyance in law to the mortgage of complainant. The circuit judge did not pass upon this question, but expressly provided in the decree of foreclosure which he made, that the priority of right between the deed and mortgage was not determined thereby.

Andrew W. Comstock appeals, claiming that as his deed was actually recorded before the mortgage, he could not properly have been made a defendant to the foreclosure, without special allegations in the bill ¡-showing why he should be postponed, and as the bill contained none such, he contends that it should have been dismissed as to him, with costs.

There is no doubt the bill was defective in the particular mentioned; but it contained a clause in the charging part, intended, evidently, to put in issue the lona fides of this deed; and the. parties went into evidence, and incurred considerable expense in establishing their sides respectively of the controversy. The decree in effect, though not in terms, is a dismissal of the bill as to the defendant, Andrew W. Comstock, without prejudice to the rights of parties either at law or in equity, but it awards no costs either for or against him.

Costs in equity are in the discretion of the court, and its discretion should not be interfered with, unless for good cause. "We think there were some reasons for denying this defendant costs under the circumstances. The general allegation that ho was a subsequent purchaser, or encumbrancer, not being sufficient to warrant any investigation of the question whether his deed should not be postponed to the mortgage, a disclaimer by him of being such subsequent purchaser or encumbrancer, would have saved his rights, and also saved the expense of much testimony. Instead of that, he made an issue of fact, upon which both parties have taken evidence, doubtless in good faith. The circuit judge, therefore, had a case presented to him in which each party had put in. unsuitable or defective pleadings, and probably regarding both as equally in fault, he declined to give costs to either as against the other. We thinlr, as all rights are properly protected by the decree, we ought not to disturb it on this ground alone; and it is affirmed, but without costs.