255 N.W. 424 | Mich. | 1934
On April 30, 1918, John O. Von Zellen obtained two loans from the First National Bank of Hancock, Michigan, each in the sum of $2,500, and each secured by a first mortgage on timber lands, *535
one in Baraga county and the other in Marquette county, Michigan. The bank assigned both mortgages to the Cartier-Holland Lumber Company, a copartnership composed of Charles E. Cartier and Edward M. Holland, which entered into a selling and operating contract with John O. Von Zellen and Oscar Von Zellen, copartners trading under the name of Arvon Lumber Company. On January 22, 1921, the Cartier-Holland Lumber Company began suit to foreclose the mortgage on the Baraga county property. Subsequently the Grand Rapids Trust Company, as trustee of the Cartier-Holland Lumber Company, was substituted as plaintiff. Defendants filed a cross-bill, claiming that there was a large amount due to them by way of set-off and recoupment, which, if allowed, would extinguish the mortgage claims. The court denied their claim and entered a decree of foreclosure on May 12, 1924. Defendants then instituted, but failed to perfect, an appeal to this court. They had delayed taking proper action for almost a year after the decree had been filed, and for over six months after the last extension of time had expired. We held that the trial judge had properly refused to sign a "case made" or extend the time for settling and signing the record. See Von Zellen v.Baraga Circuit Judge,
Pursuant to the foreclosure decree, the circuit court commissioner of Baraga county advertised the sale of the lands in question at the courthouse in the village of L'Anse on April 2, 1929. He later adjourned the sale, however, to April 8, 1929, without *536 making a public declaration of the adjournment at the time and place previously appointed for the sale, and plaintiff bid in the property at that date. Because of the absence of such public declaration of adjournment, the trial judge refused to confirm the sale, and set it aside. On appeal we held that the omission to make such public declaration in accordance with 3 Comp. Laws 1929, §§ 14588, 14620, rendered the sale invalid.
See Grand Rapids Trust Co. v. Von Zellen,
A second sale was held on January 31, 1933, and the property was again bid in by plaintiff, for a price less than the amount due on the mortgage. The sole question that we can now consider, notwithstanding the three volumes of record and a supplemental record presented to us, is the regularity of the second sale, which was held in accordance with the decree and was confirmed by the trial judge. *537
Within eight days after the order nisi confirming the second sale was entered, defendant John O. Von Zellen filed certain specific objections thereto. Olga Von Zellen, a daughter of Oscar Von Zellen, filed no objections to the order nisi, but first appears in the case by the filing of a preliminary notice of appeal. She asserts a right as heir of Oscar Von Zellen, deceased, and makes substantially the same claims as John O. Von Zellen. Therefore, in view of the decision we have arrived at, we need not discuss the motion made to dismiss her appeal. It is unfortunate that appellants, acting in their own proper persons, have seen fit to go to all the trouble and expense of claiming some 61 grounds for appeal, almost all of which relate to the original hearing and to the entering of a decree that has become res judicata. We may only consider such questions as affect the regularity of the last sale and its confirmation by the trial judge.
Appellants claim that inasmuch as chancery cases are heardde novo, therefore, in reviewing the confirmation of the second sale, we should reopen the entire case. They further contend that under Court Rule No. 59, § 9 (1931), where more than one decree has been rendered in a chancery case, an appeal from any such decree may include a review of any or all prior decrees at the option of appellants. However, this right of review, as granted under the above rule, extends only to interlocutory decrees, leading up to the final decree. As was said by Mr. Justice WIEST in Poxson v. Poxson,
Appellants seek to relate the errors claimed in the present appeal to another case, heard by the Honorable Frank A. Bell, circuit judge in Marquette, Michigan, involving foreclosure of the mortgage on the Marquette lands. Had the court in the Baraga county case found, as claimed by appellants, that sums were owing to the latter from the Cartier-Holland Lumber Company, more than sufficient to pay off the mortgage on the Baraga county lands, such surplus might have been applied towards the payment of the mortgage on the Marquette county lands. However, the court did not so find, and the decree became final. The parties entered into a stipulation through their respective attorneys that the Marquette county foreclosure case would be governed by the results of the Baraga county case. Appellants *539 now make the claim that the stipulation was fraudulently entered into, and have filed in the present appeal the record of the testimony in the Marquette county case. The latter case is not properly before us, and we decline to consider it.
Appellants further claim that the sale was not held open for a reasonable length of time, and that the property was bid in by plaintiff with undue haste, only about eight minutes after the opening of the sale. This was a chancery sale, properly advertised, and there is no showing whatsoever that any persons were prevented from bidding or that there were any other bidders present at the sale. Under the circumstances, there was no obligation to hold the chancery sale open, and there is no merit in appellants' claim of error.
The only other question that we need consider is whether the second sale was irregular as a result of plaintiff's earlier mistaken and ineffectual attempt to sell part of the mortgaged premises to the State of Michigan. In the case reported in
We believe the trial court was correct in confirming the sale, and its order is herewith affirmed. Plaintiff will recover costs.
NELSON SHARPE, C.J., and POTTER, NORTH, FEAD, WIEST, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred.