Wallace v. Field

56 Mich. 3 | Mich. | 1885

Sherwood, J.

On the 8th day of August, 1877, a decree upon the foreclosure of a mortgage was rendered in the circuit court for the county of Eaton, in favor of the above complainant and against the defendants, for the sum of $1408.86, with costs of the suit, which were subsequently taxed upon the stipulation of the solicitors for the respective parties, at the sum of $76.47. Said decree was duly enrolled on the 10th day of January, 1878. On the 5th day of March, 1878, in pursuance of said decree, the circuit court commissioner of said county sold the mortgaged property to satisfy the same, and received thereon, as the proceeds of such sale, the sum of $1100, leaving a deficit upon said decree (after paying that amount upon the decree, and the interest, costs and expenses) of $580.88. The sale was duly confirmed on the 27th day of March, 1878.

The decree requires the defendant, Charles B. Field, to pay the deficiency, if any, after making sale of the property, and authorizes an execution tobe issued therefor. No appeal was ever taken from the decree, or from the order of confirmation of the sale, or exception taken to the commissioner’s report. On the 10th day of May, 18S4, this complainant, made and filed his petition in said circuit court, praying that execution might be issued for such deficiency and the interest thereon. A copy of the petition was duly served upon the defendant Charles B. Field, who appeared and made answer to the petition, assigning eighteen reasons why the relief prayed for should not be granted. Those relating to-the validity or regularity of the proceedings to decree cannot be attacked in this proceeding. The petitioner appeared in that case and answered the bill, and was present at the hearing, and took part in the proceedings then had. The note and mortgage were both merged in the decree made, which finally determined the amount of the defendant’s indebtedness.

The decree contained the usual clause providing for a sale of the mortgaged premises to satisfy the amount found due in default of payment. Such default was made, and in pursuance of the decree the mortgaged premises were advertised and sold with the result above mentioned. An order confirming the sale was duly made and entered. The amount of the deficiency was stated in the commissioner’s report, and an execution for such deficiency was authorized to issue by the decree. The order of confirmation has never been modified or vacated; neither has any proceeding ever been taken (so far as the record shows) for that purpose. This order cannot be treated as void for irregularities until set aside or revoked in some manner by the court.

The petition now under consideration seems to be a proper one to obtain the execution authorized by the decree. The defendant has been served with a copy of it and has appeared. The practice in these cases requires the defendant, if he desires to contest the plaintiff’s right to execution, to file his answer setting out the grounds of his objection. These grounds must not be inconsistent with the decree. The validity of the decree or its justice cannot be attacked or inquired into. The answer should contain grounds which usually operate in its discharge, and; like the petition, should be on oath. The complainant can take issue upon such an answer, and if necessary, have a reference to take proofs. The decree and report of deficiency make out a prima facie case for the writ. Ransom v. Sutherland 46 Mich. 489.

No replication to the answer, however, is necessary, unless proper matter is set up in the answer in discharge of the deficiency or some part thereof. The proceedings after decree, in making the sale, having been duly confirmed, can no more be attacked in this proceeding, unless void, than the decree itself, and the defects claimed in the answer, being irregularities only, cannot avoid. 1 Barb. Ch. Pr. 596; Jennison Ch. Pr. 246, 272, and cases cited; Hunt v. Wallis 6 Paige 371. There is no laches in the case. The complainant had ton years after the decree within which to make his claim by execution. The presumption that the plaintiff could not have made his claim had he made his application sooner, is much stronger than that he had forgiven to the defendant this indebtedness. The order made in the case by the circuit judge must be

Affirmed.

The other Justices concurred.