Reading v. Waterman

46 Mich. 107 | Mich. | 1881

Campbell, J.

Waterman, in August, 1868, began an action of ejectment against Reading, who was in possession as purchaser under mesne conveyances from Anna H. Dickson, of lot 27 in William Justice’s plat of Niles, to recover that lot, on which Reading had begun and nearly completed very expensive improvements. It appears from the record that Waterman, in May,.1849, bought this land of Anna H. Dickson, and gave back a purchase-money mortgage. On the 18th of December, 1852, she began to publish notice of a statutory foreclosure, the sale being fixed for March 15, 1853, on which day she bid off the premises, and the deed was in a few days put on file with the register of deeds. The land was never redeemed, and Waterman remained in possession until May 15, 1855,-when he. surrendered possession to Mrs. Dickson, who subsequently sold to the party through whom Reading derived his title.

The ejectment suit was allowed to sleep until 1878, when it was brought to trial, and Waterman prevailed in the Berrien circuit on the ground that the foreclosure was irregular. He proved no notice to quit, and prevailed on the supposed defect of the foreclosure. He never redeemed, and never offered to redeem.

While it is the settled law of this State that a mortgagee has no right to take possession until foreclosure absolute, as decided in Newton v. McKay 30 Mich. 380, and Lee v. Clary 38 Mich. 223, as well as some other cases which have'been before ns, yet it was intimated in Newton v. McKay, that where a mortgagor voluntarily puts a mortgagee in possession, he may thereby preclude himself from relying on grounds otherwise open to him. "We think it would be-entirely wrong to allow a mortgagor, who has deliberately and intentionally yielded up possession to a claimant whose rights, if any, are derived from his own contract, to treat the possession as tortious and bring ejectment without either notice or payment. "We have no doubt that Mrs. Dickson and her grantees were lawfully in possession, whether the-foreclosure was regular or not, and that they could not be ousted by ejectment.

But inasmuch as the controversy hereafter may present', some new features, we are obliged to consider the questions raised under the foreclosure .itself. These questions arise touching the notice of sale, and the sheriff's deed.

The sheriff’s deed is said to be defective in two respects. It gives a wrong date to the mortgage, and the certificate indorsed upon it declares the deed if not redeemed will become effectual on the 15th day of March, 1844, when it should have been 1854.

The sheriff’s deed described the mortgage correctly in all but its date, which was put as May 8, 1848, when it should have been 1849. The names of the parties, and the date and volume and page of record, were properly set forth, as-well as the day and place of sale, and the amount of purchase-money. The statute contains no direction concerning the form of the sheriff’s deed beyond the requirement that it shall correctly show the price of the parcels sold. In all other respects it leaves the instrument to be determined by the rules of the common law. There can be no difficulty from this deed in tracing it back to the mortgage as recorded,, and any incorrect matter would be at once made manifest and corrected by that reference. Slater v. Breese 36 Mich. 77; Shepard v. Shepard id. 175. In the absence of any statute to the contrary we think the rules applicable to other deeds are applicable to this; and that the deed contains enough to remove any difficulty.

The error in the endorsement cures itself by reference to the deed itself, from which the time of redemption could be determined at once: Johnstone v. Scott 11 Mich. 232. Such a mistake was there held unimportant.

The blunders which appear to have got into the notice of sale indicate very careless printing, and the changes in the different-issues are not easily explained. But how far they can be allowed to defeat the sale depends on the effect they were likely to have on persons interested.

Authorities are cited and arguments made on this matter, which relate to proceedings which are had of a hostile character and ex parte, where it is commonly held that such action contrary to the usual course of law, and against persons who have not the common-law benefits of self-protection, should be held invalid, unless conforming strictly to statutory authority.

We held in Lee v. Clary 38 Mich. 223, that statutory foreclosures did not come in all respects within the same mischief. 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 the 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 be 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 unsafe, 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 regularity is all that should be held imperative.

The only things absolutely required in the notice of sale are — the names of the parties original or by assignment, the date of the mortgage and of its record, the amount claimed to be due, and a description substantially agreeing with that -in the mortgage.

In the present ease the body of the notice contained the name of the mortgagor, but the mortgagee was named therein “ Dixon ” and not “ Dickson.” . These names, however, are the same in sound, and legally identical unless shown to refer to two different persons. Here the name of Mrs. Dixon was referred to as mortgagee and the mortgage itself removed any such possibility of error. The name signed to the notice was shifted by some accident to the types, but as the notice showed the foreclosure was on behalf of the original mortgagee, no harm could come from such a manifest slip, which could mislead no one.'

The notice was first published December 18th, but was dated December 28th. This was also of no account as the error was palpable. The day of sale was properly given, and the publication full.

The notice gave the date of the mortgage once correctly, and once incorrectly. The date and place of record, and the volume and page were also given accurately. It was manifest on the face of the notice that one of these dates was wrong, and the means of correction were given by the record. It is indeed suggested that the date given correctly as 1819 refers to the bond and not to the mortgage which is mentioned as of 1818, the days of the month corresponding. This does not strike us forcibly, for it would not be likely that a mortgage given one year would refer to a bond not made until a year after. It is not to be supposed that purchasers under foreclosure sales look at the dates of instruments without consulting the records to ascertain the state of the title. The information given by this notice directed every one immediately to the record, and that necessarily explained ,the true date of the two dates set out in the notice itself. We cannot imagine that any one could be deceived by the imperfection.

We are, therefore, of opinion that none of the mistakes were substantial, or operated in any way to the prejudice of Waterman. Judgment should have been given in favor of Reading. As the case was tried by jury we can render no-final judgment on the merits, and can only reverse the judgment below with costs of this court and remand the case for a new trial at the circuit.

The other Justices concurred.