208 N.W. 60 | Mich. | 1926
Defendants King are the fee owners of a farm in Oakland county; they sold it on contract to defendant Hugh Wilton. Plaintiff recovered a judgment in an action at law against him. Before execution was issued he assigned his interest in the contract to his wife, defendant Grace Wilton. Levy was made under the execution when issued. The Wiltons left the State. Defendants King commenced summary proceedings against them to recover possession of the farm; they were brought in by publication. Defendants King had judgment for restitution on August 21, 1924, and $1,408.42 was found to be the amount due on the contract. This bill was filed September 18, 1924. By it plaintiff seeks as to defendants Wilton the setting aside as fraudulent the assignment of the contract from Hugh Wilton to his wife, and as to defendants King the right to redeem. By the bill plaintiff tendered the amount due the Kings and costs, and deposited with the clerk such amount. On filing the bill a summons and an injunction restraining defendants King from proceeding further with the summary proceedings were issued and placed in the hands of the sheriff for service. They were not served until the 27th. Defendants Wilton were brought in by publication and their default duly entered. Defendants King answered issuably and upon a hearing the bill was dismissed. Plaintiff appeals.
Some minor questions should be first disposed of. They require little discussion. This bill is clearly a bill in aid of execution and is maintainable if the facts support its allegations (3 Comp. Laws 1915, § 12897, as amended by Act No. 215, Pub. Acts 1917 *255
[Comp. Laws Supp. 1922, § 12897]; Lipp v. Jacobs,
The principal contention of defendants is this: The Kings recovered judgment before the commissioner August 21st; that judgment cannot be collaterally attacked; payment of the amount found due could *256 be made within the next 30 days, then only to the commissioner; the tender into the circuit court in chancery of the amount did not save plaintiff's right to redeem; the suit was not commenced until process was served and this was after the 30 days had expired and defendants' title had matured. The last point is already answered by what has been said. When the suit was commenced and the money tendered into court there was still time to redeem.
It is well settled that a court of equity will not try out issues tried or triable before the commissioner in summary proceedings cases in which that court has jurisdiction.Security Investment Co. v. Meister,
But defendants' counsel say this tender was conditional. It was not on its face. The bill unequivocally tendered the money and it was paid to the clerk. But from a practical viewpoint we think counsel are right. No court of equity would decree that this money should be paid to defendants King unless it gave plaintiff relief. It would manifestly be inequitable to give defendants King over $1,400 of plaintiff's money and at the same time deny that plaintiff had any interest in the land under its levy. So practically, counsel are right. But because they are right is all the more reason why equity should entertain this bill. Only in a court of equity may the rights of all the parties be worked out. Here the fraudulent conveyance of Wilton to his wife may be set aside and plaintiff may proceed to collect what it can from its absconding debtor. Here defendants King will receive the money and all the money due them on their contract and that is all they are entitled to as a matter of good conscience. The case of Wray-AustinMachinery Co. v. Flower,
The decree dismissing the bill will be reversed and one here entered in conformity with this opinion. As payments have matured on the contract since this suit was commenced, plaintiff will be required to make payment of all past due instalments, the amount unless agreed upon to be fixed on the settlement of the decree. Plaintiff will recover costs of both courts.
BIRD, C.J., and SHARPE, SNOW, STEERE, WIEST, CLARK, and McDONALD, JJ., concurred.