57 Mich. 49 | Mich. | 1885
The plaintiffs bring ejectment in this case to recover possession of land in the county of Kent, purchased by them at an execution sale thereof made on the 28th day of May, 1877. The cause was tried before Judge Montgomery at the Kent circuit, without a jury, and the plaintiffs recovered. On the trial the circuit judge found among others, the following facts, viz.: “ That on the 4th day of November, 1876, the plaintiffs obtained a judgment against defendant Dwight Nankin et al. for the sum of $1793.57; that, upon this judgment, execution was issued on the day of its rendition to the sheriff of Kent county, who, before the return-day thereof, levied the same upon the lands in question ; that afterwards, on the 28th day of May, 1877, the said sheriff, by virtue of said writ, having first given the notice required by law, duly sold said premises to the said Luman Jenison and Lucius Jenison for the sum of eleven dollars per acre, and thereupon the said sheriff, on the day of the date of said sale, made, executed and delivered to said purchasers the certificate of such sale required by law, and at the same time made, executed ánd filed in the office of the .register of deeds for the county of Kent aforesaid one of said certificates ; that the said premises were not, nor was any part thereof, ever redeemed from such sale, and that after the expiration of more than fifteen months from the date of said' sale, and on the 19th day of September, 1878, the successor' in office of the sheriff making such sale completed the same by executing and delivering, in due form of law, a conveyance of said premises to the said Luman' Jenison and Lucius Jenison; that on the 2d day of December, 1873, and for several years prior thereto, the said Dwight Nankin had been and then was the owner in fee-simple of the premises mentioned, and that on said 2d day of December, 1873, the said Dwight Nankin, without any consideration therefor, and with the intent to hinder, delay, and defraud his then existing creditors, and also with intent to hinder, delay and defraud his future creditors, made, executed and delivered to the said
Some other findings were made at the request of counsel, but the foregoing are sufficient to raise the questions necessary for the disposition of the case.
Counsel for defendants took the following exceptions to the findings of the court, viz;: “ (1) That said finding does not purport to state the facts, but states conclusions instead; (2) that said finding of facts is insufficient to support the judgment ; (3) that they except to the neglect to find, as matter of law, that defendants were entitled to judgment; (4) that they except to the neglect and refusal of the court to find that this suit was brought too late, and that for that reason plaintiffs could not recover; (5) that they except to the neglect and refusal to find that the plaintiffs had lost their right to bring this action by laches; (6) that they except to the
The provision of the statute referred to in the sixth exception reads as follows: “ All the real estate of any debtor, * * * including lands fraudulently conveyed, with intent to defeat, delay or defraud his creditors, * * * shall be subject to the payment of his debts, * * * and may be levied upon and sold on execution as hereinafter provided, * * *: provided, * * * that in case of a levy upon the equitable interest of a judgment debtor, the judgment creditor may, before sale, institute proceedings in aid of said execution, to ascertain and determine the rights and equities of said judgment debtor in the premises so levied upon, and that in case of a sale of said premises without having ascertained and determined the interest of said judgment debtor in the premises so levied upon and sold, he shall, within one year, institute proceedings to ascertain and determine the same, and to settle the rights of the parties in interest therein.” How. Stat. § 6108.
It is evident the circuit judge in t this case followed the case of Cleland v. Taylor 3 Mich. 201, and held that ejectment was proper after sale made and the deed given. The statute then under consideration was simply a provision that lands fraudulently conveyed might be sold on execution. Rev. Stat. 1846, p. 317, § 1. That statute was amended in 1867 so as to read as it does now, and- contains provisions stating how and where persons desiring to reach interests in lands fraudulently conveyed should proceed. Sess. L. 1867, vol. 1, p. 132. Evidently the statute was intended to cover such cases as the present.
In Messmore v. Huggard 46 Mich. 558, this subject came under examination. Messmore levied an execution on lands
These remarks, I think, apply with great force to the case in hand. The land in this case was offered for sale ; nothing more and nothing less. But the land was not owned by the defendant in the execution. It had been sold and conveyed to Albert Bankin. His deed was not void; at most voidable only, if what plaintiff claimed was true. The record showed, as well as the conveyances themselves, that the land was not that of the defendant in the execution. No claim was made in the notice -of sale that the deed to Albert was void, and that the property offered for sale was only the interest of Dwight Bankin. It is very evident, in this case that all the parties who might feel inclined to bid stood on an unequal footing; they did not have equal knowledge of the state of the title, and in all such cases there is a failure to secure one of the main objects of a public sale, viz., that all bidders should stand on an equality with the judgment creditor at least. Ledyard v. Phillips 32 Mich. 13.
In this case, whatever the form of the levy was, only the equitable interest of the defendants could properly be levied
The judgment must be reversed, and judgment entered for the defendants, who will recover costs of both courts, and the record must be remanded.