30 Mich. 331 | Mich. | 1874
Tbe defendant in error purchased a farm, worth some-five thousand dollars, on which there was a mortgage, made by one Parish and wife to the plaintiff in error, to secure eight hundred dollars, with’ interest, and the purchase was made subject to such mortgage.
Hazen instituted proceedings in the court of chancery to foreclose the mortgage, and carried them to a final decree. He made the mortgagors, Parish and wife, and Reed, and one Peak, defendants, and the only reason •alleged in the bill for joining the two latter was, that they had, or claimed, some right or interest as subsequent purchasers, incumbrancers, or otherwise.
All the defendants appeared, and hence entitled themselves to notice of the subsequent proceedings. A copy of the bill was served, but the defendants failing to plead ■answer, or demur, the bill was taken as confessed in April, 1872, and a reference was made to take proofs, and ascertain and report the sum due. On that reference, Hazen was sworn as a witness, and he testified that he received only seventy-five dollars, and not one hundred and seventy-five dollars, to be applied on the mortgage. There was no receipt on the note or mortgage of any portion of the sum paid on the 6th of December. The record fails to .show whether any of the defendants attended on the reference, and is equally silent as to whether they had notice ■or not. It is reasonable to suppose, however, that notice was in fact given, because it was the duty of complainant to give it, and it does not appear that any question was ■ever made that it had been omitted. Besides, the subsequent proceedings implied that the reference had gone on regularly.—Stockton v. Bishop, 4 How., 155; Townsend v. Jemison, 7 How., 706.
It must not be taken for granted, however, from these observations that if it had appeared on the face of the
On the 4th of May, 1872, a final decree of foreclosure and sale was made, and on the 2d of January, 1873,. Reed filed his petition in that cause to have the decree opened, and for a rehearing. This application came on to be heard in the succeeding March, and affidavits on each side were read. The court denied the motion, and allowed the decree to stand as made. Reed finally, in the language of the record, “paid the amount due on the mortgage.” Subsequently he sued Hazen before a justice to recover the one hundred dollars, which he alleged had not been applied. The justice sustained the right of action, and gave judgment accordingly. Hazen appealed, and the cause was tried in the circuit before a jury. He insisted in that court that the decree in chancery was a valid bar, but the defense was overruled, and Reed again prevailed. Hazen then sued out this writ of error.
The apparent strong ground of moral right in favor of the defendant in error is certainly well adapted to induce the judicial mind to look earnestly for some principle or distinction adequate to uphold the recovery below.
Still, however manifest and strong the natural equities in the specific instance may be, the court may not depart from the settled rule of law in order to do what may be deemed substantial justice in the particular ease.
The counsel for the defendant in error reasoned quite ingeniously to show that the decree was not in substance an adjudication upon the right set up by Reed in this suit. But after careful reflection, and setting aside fallacious appearances, there seems to be no real'ground for holding against the conclusive effect of that proceeding. If every
The principle that a matter once fully adjudicated is conclusively adjudicated, as against parties and privies, was stated and applied in Wales v. Lyon, 2 Mich., 276.
It was there said “that the judgment of a court of competent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence, conclusive between the same parties or their privies upon the same matter directly in question in another court, and that no matter once litigated and determined by proper authority shall a second time be brought into controversy between the same parties or their privies.”
In the present case Hazen as complainant set up the mortgage debt as a claim, and the determination of the amount of that claim was imperatively involved in the suit. He charged that he had a pecuniary lien on the farm which Eeed had purchased, and he sought a legal liquidation of the amount of that lien, and a final adjudication on the extent of his right and for its enforcement as it should be judicially established. His proceeding was precisely adapted to obtain a conclusive legal determination as to the validity of his claim and lien, and the true amount of it, if ascertained to be valid. He could get no final decree in his favor without a determination of the exact amount.
Eeed was a defendant, and in a situation, if he chose to avail himself of his right, to take a personal and active part in the proceeding under the order of reference to settle the amount remaining on the mortgage. His position in the case not only enabled him to speak, but called upon him to speak if he had interests which might be prejudiced by
The decided cases, so far as seen, which fairly bear upon the question, are all against the plaintiff below. Several are cited in the brief for plaintiff in error. The case of Egleston v. Knickerbacker, 6 Barb., 458, is a very strong one.—See also Adams v. Barnes, 17 Mass., 365; and Cow. and H. Notes, Vol. 2, p. 915, note 639; Job v. Collier, 11 Ohio (Stanton), 422.
The only regular course for the defendant in error, if dissatisfied with the amount as reported due on the mortgage, was to intervene in that cause. The ground of this action was wholly bound up with the matter in controversy there; and it was, theoretically, and in contemplation of law, impossible to make a final decree for the complainant in that case without involving the cause of action set up here.
The judgment must be reversed, with the costs of both courts, and a new trial ordered.