103 Mich. 104 | Mich. | 1894
After the decision in 66 Mich. 442, defendant took a new trial under the statute, at which the plaintiffs again recovered judgment. In the chain of title shown by the plaintiffs upon the trial, the record of two deeds-was introduced, to each of which the defendant objected, upon the ground that the deeds were not properly certified to entitle them to record. The original deed executed by the sheriff of Ingham county upon a foreclosure sale by advertisement was also introduced, under objection and exception. The defendant introduced no evidence, and the-court directed a verdict for the plaintiffs.
Only one error is assigned, viz., that the court erred in directing a verdict. The correctness of this ruling depends entirely upon the correctness of the ruling admitting these deeds. No error is assigned upon the admission of the testimony. We think counsel should have assigned error upon the rulings of the court admitting the evidence. Johnson v. Ballou, 25 Mich. 460; Alberts v. Village of Vernon, 96 Id. 549; Hecock v. Van Dusen, 96 Id. 573. We are, however, inclined, under the circumstances of this-case, to dispose of it upon the merits.
Of the first two deeds above mentioned, one was executed in the state of New York and the other in Connecticut. Defendant’s counsel suggest, rather than insist, that they were inadmissible, under Brown v. Cady, 11 Mich. 535. They were executed and recorded in 1839. The certificates attached thereto bear date, respectively, July 1 and July 12, 1839. The objection is that the certificates do not state that the deeds were executed according to the laws of these states. This was not required by the registry law then in force. Laws of 1839, Act No. 115, p. 219, § 34. This law only required the certificate
The objections to the sheriff’s deed are as follows:
“1. The notice of sale did not state at what particular place the sale would be made.'
“2. It did not state where the assignment of the mortgage was recorded.
“3. It did not assert that the sale would be made to the highest bidder.
“4. There is no proof that any showing was furnished the sheriff prior to or at the time of the sale that the notice of sale had ever been published at all.
“5. There is no proof that the premises were offered for sale, bid upon, or struck off to the highest bidder.
“6. There is no proof that the sheriff’s deed was f forthwith’ deposited with the register of deeds.”
The notice of sale stated that it would take place at the court-house in the village of Mason, Ingham county. This description of the place was sufficient. The notice contained all the requirements of the statute. Comp. Laws 1871, § 6915.
An auction sale implies a sale to the highest bidder, and it will be presumed that it was so made.
The notice gave the date, time, and place of the record of the original mortgage, the date of the assignment, and the date of its record in the office of the register of deeds in Ingham county. The omission to give the book and page of the registry, as that was not required by the statute, was not a fatal defect.
Attached to the deed was a copy of the notice of sale, but no affidavit of its due. publication. Plaintiffs produced upon the trial copies of the newspaper showing the publication of this notice for 13 consecutive weeks prior to the sale. This proved the publication required by the law. We are cited to no case which holds that the proof was not competent, or that it was necessary' that the sheriff
It does not appear from the printed record that the sheriff’s deed was filed with the register. In the absence of such proof, we think the correct rule is stated in Sinclair v. Learned, 51 Mich. 337, — that “it would seem that the presumption of law that an officer performs his duty ought to prevail until the fact is disproved.” We find, however, upon an examination of the original record, that there is indorsed upon the deed, “Received and filed April 22, 1858, at 4 p. m.,” — the very date of the sale. The law was therefore strictly complied with. It appears, however, that the deed was not acknowledged by the sheriff until April 27; and it is contended that “the owner was thus cheated of the right of redemption by paying the register of deeds during that five days.” A purchaser cannot thus be deprived of an otherwise valid sale. The deed was filed, and was notice to the mortgagor, and he cannot be held to have been deprived of the right of redemption.
Judgment affirmed.
