Plаintiff filed a bill to quiet title to certain lands in West Bloomfield township, Oakland county, Michigan, to which she claimed title by sheriff’s deed. The deed was executed May 23, 1931, following a mortgage foreclosure by advеrtisement, but was not deposited with the register of deeds until September 14,1931. Defendant made no attempt to redeem from the sale, but refused to recognize its validity because of plaintiff’s failure to rеcord the deed within 20 days from the date of sale. The instant suit was not commenced until the time for redemption had expired, as computed from the date of deposit of the deed. Defendant filed a cross-bill asking that he be declared the owner in fee simple of the premises. The court held the sheriff’s deed valid and forever barred appellant from asserting or claiming any interest in and to said lands, or any part thereof.
The applicable part of 3 Comp. Laws 1929, § 14433, reads:
“Such deed or deeds shall, as soon as practicable, and within twenty days after such sale, be deposited with the register of deeds of the county in which the land therеin described is situated, and the register shall indorse thereon the time the same was received, and for the better preservation thereof, shall record the same at length in a book to be provided in his office for that purpose, and shall index the same in the regular index of deeds.”
The 20-day provision was inserted in the statute by Act No. 152, Pub. Acts 1875. The former law required that the officer or person making the *611 sale should “forthwith * * * deposit the same with the register of deeds of the county in which the land is situated.”
In order to determine the validity of the sheriff’s deed, we must decide whether the statute is mandatory or directory, and if directory, whether defendant is estopped to attack the validity of plaintiff’s deed. Appellant claims Judge Christiancy’s opinion in
Doyle
v.
Howard,
Johnstone v. Scott, supra, was an action of ejectment in which plaintiff questioned the validity of a recorded sheriff’s deed to which was attached a certificate incorrectly stating that the conveyance became absolute in one year. The statute then in force allоwing two years for redemption, the defendant made no attempt to redeem and the court held the foreclosure valid and the statute directory in so far as it pertained to the certificаte, stating, however, that the erroneous indorsement could not alter the legal period of redemption.
In Doyle v. Howard, supra, also a foreclosure by advertisement, the court held the foreclosure and sаle invalid because of the sheriff’s failure to execute and deposit the deed or any affidavit of the facts of the sale with the register of deeds, until after the expiration of more than a year from the time of sale. Justice Christiancy there said:
“The whole proceeding is ex parte, and not judicial. # * * It is, therefore, essential to the rights of the mortgagor and those claiming under him *612 subsequent to tbe mortgage, that all the safeguards which the stаtute has provided for the protection of their rights should be substantially observed. And every step of the proceeding which the statute has provided for divesting their title, and the observance of which the court can see might operate as a protection of their rights, must be considered as inserted for that purpose, and for their benefit, so far as it may thus operate, and not merely as dirеctory, or to be dispensed with, without their consent. * # *
“And, though a mortgagor may have seen a notice of foreclosure and sale in the newspaper, yet, if, some time after the day fixed for the sаle, he should, on inquiry, find that no deed had been deposited with the register, he might very properly infer that the proceeding had been abandoned without being perfected by a sale.
£ £ The rights thus secured tо the mortgagor by the provisions in reference to the deed and its deposit with the register, are substantial rights, of which he would be deprived by the omission to execute and deposit the deed, as requirеd by the statute. We must, therefore, hold the provisions of the statute, so far as they relate to the execution and deposit of the deed, to be mandatory, and not merely directory. ’ ’
After the forеgoing language describing the provisions of the statutes as mandatory, the learned judge qualified his holding and pointed out that:
“We do not mean to assert that the foreclosure would be void, by reason оf the deed not being executed and deposited on the very day of the sale, or within a few days thereafter. But we confine our opinion to the case where no deed has been executed or deposited until after the expiration of a year from the day of sale. In such a case we enter *613 tain no donbt the sale should be treated as invalid for any purpose of convеying the title.”
It may be that this decision, 'which was written while the earlier statute requiring that the deed be deposited “forthwith” was in full force and effect, influenced the amendment to the statute in 1875.
The trial court, in its oрinion in the instant case, quoted from
Perkins
v.
Keller,
“Upon the first point we think the objection is not well taken. We have held in
Lilly
v.
Gibbs,
Both this and the Lilly Case are authority for the view that thе provisions of the former statute were not mandatory.
The statute was amended and now provides a reasonable time (20 days) after sale during which the
*614
deed may be filed. Has the rule been changеd by the 1875 statutory enactment? In speaking of statutory foreclosures, Justice Campbell said in
Reading
v.
Waterman,
“The statutes regulating them are made to enlarge and not to cut down the rights of mortgagors. Before such statutes were passed, sales made under a power of sale contained in a mortgage were governed by the same rules applicable to sales under any other power, and courts in thе absence of statutes have never applied to such powers any such technical rules as would impair the security of purchasers. The power is part of the contract, and should bе construed on principles applicable to contracts, and not as a hostile process.
“The statutes were intended to prevent surprise or unfairness, and they should be enforced in everything substantial. Courts cannot disregard any of their positive provisions. But on the other hand those provisions cannot be enlarged or unreasonably construed so as to render mortgage sales unsаfe, or to make bidding hazardous. The law was designed to encourage and not to destroy recourse to these simple and cheap remedies; and while no substantial right should be disregarded, substantial rеgularity is all that should be held imperative.”
Has there been a substantial compliance with the statute?
Lau
v.
Scribner,
The learned trial judge declared in his opinion:
‘ ‘ Could the defendant show prejudice through the failure to promptly record the deed there would bе more force to his claims. He made no effort, how *615 ever, following the sale, either within the year granted for redemption, or, within a year from the filing of the deed, to redeem. He makes no tendеr now of the amount due under the mortgage; neither does he allege a readiness to pay the obligation it secured. Under such circumstances the court ought not to set aside the sale exсept for a clear failure to comply with some mandatory provision of the statute which prejudiced the mortgagee’s rights and operated to destroy the purpose of the statute. ’ ’ •
In this сase no showing is made of any damage suffered by the mortgagor as a result of the failure to deposit the deed. If damage had been shown, it seems certain that the appellant would have been entitled to relief, and the sale might have been held invalid. Grover v. Fox, supra. The query may be made, Where shall the line be drawn if this deed is held valid? When the parties resort to a court of equity, we may, in such case, determine their rights, within-the rules, of course, with regard to the particular situation before us.
We see no reason to allow appellant the benefit of a new foreclosure merely because hе insists upon a technical and strict construction of the statute. The equities are not with his position. It may be true that appellee, or some one acting for her, has acted inadvertently in the mаtter, but no harm has been done the parties or anyone claiming through them. The situation appeals to the conscience of the court. We hold that the provisions of the statute as to the time of recording are directory and, under the circumstances of the instant case, defendant is estopped to question the validity of plaintiff’s deed.
The decree is affirmed, with costs to appellee.