Stevenson v. Kurtz

98 Mich. 493 | Mich. | 1894

McGrath, C. J.

James H. Stevenson died October 14, 1877. On the 9th of October, 1877, defendant Kurtz filed a bill to foreclose a certain mortgage given by James H. Stevenson to one Jepp, and assigned to said Kurtz July 7, 1876. A decree was entered March 15, 1879, and a sale was made May 5, 1879. Complainants, who, with the exception of Carrie Jordan, were infants at the time of the decree and sale, as heirs at law of James H. Stevenson, filed this bill in August, 1890, to review and set aside the decree aforesaid.

It is insisted:

1. That, inasmuch as there was no service of subpoena on James H. Stevenson before his death, there was no cause in court to be revived after his death. This point is ruled by Gordon v. Tyler, 53 Mich. 629.

2. That the premises were described in the original bill, in the paper suggesting the death of James H. Stevenson, and in the order reviving the suit against Carrie Jordan, a married daughter, as “ Lot No. 6 of Backus’ Subdivision of Out-lot No. 8 of the Woodbridge Farm,” whereas the correct description was “Lot No. 6 of Backus’ Subdivision of Out-íot No. 87 of the Woodbridge Farm.” An amended bill, correcting the description, was afterwards filed. Josephine Stevenson, step-mother, was appointed guardian ad litem of the infant defendants, and as such guardian, together with Carrie Jordan, consented to the filing of the amended bill, and answered thereto. The original bill fully identified the property involved as lot numbered 6 of Backus’ subdivison of tbe Wood bridge farm, and would not have been fatally defective in the absence of the amendment. Cooper v. Bigly, 13 Mich. 463; Beyschlag v. Van Wagoner, 46 Id. 91; Dwight v. Tyler, 49 Id. 615; Slater v. Breese, 36 Id. 77.

3. That the order made on suggesting the death of James H. Stevenson was not based on any petition, nor was it signed or certified. It is sufficient that the order made recites the petition. Stimpson v. Circuit Judge, 41 Mich. 3; Webster v. Bailey, 31 Id. 36; Willetts v. Mandlebaum, 28 Id. 524; Sargeant v. Bank, 12 How. 371.

4. That no order appears appointing the guardian ad litem. A petition appears, purporting to have been signed by the infants, and there is no averment in the bill, or any evidence in the record, tending to show that said petition was not actually signed by the infants. The calendar entries show that, on the date of the filing of the petition, an order was made appointing a guardian ad litem. The answer of the infants is signed by the guardian ad litem as such. The decree refers to the answer of the infant defendants, naming them, “by their guardian ad litem.” We think the evidence sufficient that an order was actually made, and the presumption is that the necessary proofs to justify its action were before the court when the order was made. Willetts v. Mandlebaum, supra; Sargeant v. Bank, supra.

The bill in this case does not question the validity of the mortgage. There is no evidence of fraud. Fraud cannot be inferred from the fact that the guardian was the step-mother of the infants, and the sister of complainant in the foreclosure proceeding. The mortgage was assigned to Mrs. Kurtz 15 months before the death of the mortgagor, and she commenced her foreclosure proceeding before his death.

The testimony as to the inadequacy of the price at which the premises sold is not of a character to entitle it to any consideration.

The decree dismissing the bill must therefore be affirmed, with costs to defendants.

The other Justices concurred.