Peake v. Bradley

121 Mich. 182 | Mich. | 1899

Hooker, J.

The complainant is receiver of a mutual fire-insurance company, and as such receiver made an assessment upon its members, among whom were the defendants,-who, as husband and wife, had joined in taking out two policies of insurance upon property owned by them. A judgment was obtained by him against them, and execution was issued, and returned unsatisfied. Another execution was issued, and levied upon the lands in question, upon which the property insured was situate. The bill of complaint alleges the foregoing facts, and states further that the complainant claims a lien upon said premises under 1 How. Stat. § 4258. The judgment was for $16.52, with costs, taxed at $21.75; and the descriptions indicate that there were 42 acres of the land. The bill alleges that the complainant is without remedy except in equity, and prays that a lien be declared, and the defendants decreed to pay the judgment and costs, and that in default thereof the premises be sold, etc. The defendants demurred upon several grounds.

Section 6613, 2 How. Stat., provides that:

“ Such courts shall dismiss every suit concerning property, excepting suits between copartners, and suits for the enforcement of mechanics’ liens, suits for the foreclosure of mechanics’ liens, and suits for the foreclosure of mortgages, where the matter in dispute shall not exceed one hundred dollars, with costs to the defendant.”

This is such a suit. It is not, as the complainant contends, a case where the jurisdiction is to depend upon the value of the land, as in the cases of Fuller v. City of Grand Rapids, 40 Mich. 395; Huyck v. Bailey, 100 Mich. 223; for it is not a bill filed to prevent a threatened injury to property worth more than $100. On the contrary, it seeks to impose a lien upon it of less than $100, and, as it is neither a mechanic’s lien nor a mortgage, it is within the prohibition of the statute, unless made an exception to such statute by 1 How. Stat. § 4263. The last-mentioned section authorizes the receiver to sue for assessments in the circuit court in actions of assumpsit or debt, but we find nothing to indicate a design to permit the company, if solvent, or the receiver, if it is insolvent, to file bills to enforce such liens in violation of section 6613, if, indeed, such liens could be enforced by proceedings in chancery in any case,' — a question upon which we intimate no opinion.

The learned circuit judge sustained the demurrer, and in so doing committed no error. His order is affirmed, with costs.

The other Justices concurred.