Huyck v. Graham
82 Mich. 353
Mich.
1890
Check Treatment
Grant, J.

April 28, 1884, defendant executed to William Anderson a mortgage for $5,646, due in five years, with annual interest at 7 per cent. Anderson died in 1886. Plaintiff was appointed administrator, and commenced a foreclosure of the mortgage by advertisement April 12, 1887, claiming as then due $929.38. In fact, the amount then due was only $525.78. April 28, 1887, another installment of interest became due, amounting to $395.22. The only irregularity in the notice was the •erroneous amount claimed. July 14, 1887, the premises were sold under the notice for the sum of $6,669.48, and were bid in by plaintiff. The difference between the amount actually due and the amount of the purchase price was never tendered to defendant. No money was actually paid at the sale. The sale was made by a deputy-sheriff, and the deed executed by the sheriff. The sale was made for the principal sum secured by the mortgage, the interest due at the date of sale, and costs of sale, less $63.64. *356The land was not worth the amount duo upon the mortgage. The sheriff's deed was executed to plaintiff as administrator.

July 2, 1888, defendant filed a bill in chancery against plaintiff, praying that the sale might be set aside. Issue was joined, and on September 24, 1888, decree was entered holding the sale to be null and void, and permitting defendant to redeem by paying $525.78, less the costs, within 90 days, and, in default of such payment,'that the bill be dismissed without costs. Defendant did not pay the amount decreed to be due. Plaintiff thereupon filed a petition setting forth that fact, and on April 8, 188.9, decree was entered dismissing the bill. Plaintiff, after demand, on April 12, 1889, brought this suit to recover possession of the premises. The case was tried by the court without a jury, and judgment rendered in favor of defendant.

The foreclosure sale was not made subject to future installments, but the proceedings were evidently conducted upon the theory that the mortgagee possessed the right to bid the property in for the full amount secured by the mortgage, * without any obligation resting upon him to pay to the mortgagor the amount not due. It is unnecessary to determine what the rights of the defendant would have been under the sale if no suit had been instituted by him to set the sale aside. But he has had his day in court in the manner chosen by himself. He did not choose to stand upon his rights at law upon the alleged ground that the sale was void, but he filed his bill in chancery praying that the sale be set aside and declared void. Our only concern, therefore, is to determine the effect of the final decree rendered in that suit.

The bill filed by defendant must be considered as a bill to redeem, and it can make no difference that he did not pray for the right to redeem. When no fraud is *357alleged, and the only irregularity is that the notice of sale claims a greater amount than is actually due, the mortgagor must be prepared to do equity, and this can only be accomplished by payment of the amount actually due, or by a decree for the resale of the premises. 2 Jones, Mortg. § 1921; Schwarz v. Sears, Walk. Ch. 172; Goodenow v. Curtis, 33 Mich. 510. It is well settled that, where no actual injury or fraudulent purpose is shown, the mere fact that a larger amount is claimed in a notice of sale than is actually due does not render the sale, and the deed made in pursuance thereof, void. Klock v. Cronkhite, 1 Hill, 110; Jencks v. Alexander, 11 Paige, 626; Millard v. Traux, 47 Mich. 251 (10 N. W. Rep. 358), 50 Id. 343 (15 N. W. Rep. 501). The case of Fosdick v. Van Husan, 21 Mich. 567, established the rule in this State that the decree should be for redemption by payment of the amount actually'due within a specified time, and that, in default thereof, the premises be sold as in foreclosure cases. Grover v. Fox, 36 Mich. 461; Newkirk v. Newkirk, 56 Id. 525 (23 N. W. Rep. 206); Meigs v. McFarlan, 72 Id. 194 (40 N. W. Rep. 246). The decree in this case did not provide for a resale upon failure to redeem, and, in this respect, was not in accordance with the established practice, but the defendant appears to have been satisfied with it. Whether it was such an one as he asked for does not fully appear. It is fair to presume that it was, for it nowhere appears that he objected to it, and he did not •appeal. The decree is therefore binding upon him. Were he dissatisfied with it, he should have appealed, and had his rights determined and the error corrected in that suit. He cannot now be heard to attack it collaterally. He must therefore be held to have rested satisfied with that decree, which was one of strict foreclosure. Prior to the decision of Fosdick v. Van Husan, supra, the prac*358tice in this State was to decree a dismissal of the bill upon failure to redeem, and this operated as a foreclosure. The court in the chancery case had jurisdiction of' the parties and the subject-matter, and, though the decree be erroneous, it is binding upon both parties until set aside.

Judgment reversed, and judgment entered in this Court for plaintiff.

The other Justices concurred^