141 Mich. 433 | Mich. | 1905
Separate appeals were taken in this case by defendants Walker and Mrs. Jebb, and other reasons urged against consolidation than those urged by the other appellants. They also urge objections to the decree which affect them alone. A separate opinion in their case is therefore necessary.
1. They urge that the consolidation was prejudicial to the defendant Jebb and deprived her, of material rights, because:
(a) They insist that under the trust agreement of Walker, to foreclose which the second suit was brought, the duty to sell the trust property would not arise until there was an ascertained deficiency under the foreclosure of the original mortgage, so that the second suit was premature. This appears to be based upon the theory that there was an extension of time to this trust agreement. The parties evidently desired to gain time. Complainant refused. Mr. Walker, in his testimony, says:
“There was no definite extension of this large mortgage for a period of five years, because it could not be obtained; but the understanding was that this was to provide means until we could sell.”
So this trust agreement was assented to by Mr. Miller, to be sold by him upon the “written request of the Detroit Savings Bank, or of Sidney T. Miller, trustee, or both.” After some time the request was made, and the duty to foreclose the trust then became operative.
(b) It is also insisted that Walker and Mrs. Jebb should be made parties by an amendment to the original bill, and not by consolidation. Mrs. Jebb’s rights can be thoroughly protected in the consolidated suit. She might have gained some additional time, ifbroughtinby amendment, instead of by consolidation. She is not otherwise prejudiced.
2. It is urged that the decree is erroneous (a) because interest was computed at an excessive rate; (6) because the proceeds of the sale of Mrs. Jebb’s property are applied to her indebtedness t'o the Detroit Savings Bank, not yet due; (c) that the decree requires the sale of Mrs. Jebb’s property to be made by a circuit court commissioner, instead of the trustee. No such claims were made in the court below, or upon filing objections to the report of the commissioner, or on entering the decree. The objections are made too late. Belding v. Meloche, 113 Mich. 223; Beck v. Finn, 122 Mich. 21.
3. It was next contended that the commissioner’s deed was improperly executed and recorded before the consummation of the sale. The report of the commissioner was made November 3, 1904, and his deeds on the sale were recorded on the same day. The defendants moved to set aside the sale and vacate the deeds, and on the 21st of November an order was made by the court,
Decree is affirmed, with costs.