Botsford v. Botsford

• Decision Date: 27 June 1882
• Citation: 12 N.W. 897,49 Mich. 29
• Court: Michigan Supreme Court
• Parties: BOTSFORD v. BOTSFORD and others.

12 N.W. 897

49 Mich. 29

BOTSFORD v. BOTSFORD and others.

Supreme Court of Michigan

June 27, 1882

An objection that the bill in a foreclosure suit describes the note secured by the mortgage as being given by one of two persons, while the mortgage describes it as being given by both persons, is not a fatal variance, and is of no importance except as to personal liability.

Formal defects are waived by not moving to suppress.

A party brought in under the general clause that he had or claimed to have some interest in the equity of redemption, and who does not disclaim, is properly retained as a defendant, and he cannot claim immunity from liability for costs.

Where all the parties who appear by the record to have interests allow the bill to be taken as confessed, dismissal of the bill is error. COOLEY, J.

Appeal from Oakland.

Beakes & Cutcheon, for defendants.

CAMPBELL J.

Complainant as mortgagee of Albert Botsford filed his bill to foreclose a mortgage on a considerable number of lots in South Lyon dated December 18, 1877, for $2,500, and interest. This mortgage was given to secure among other things a note for the amount mentioned signed by S. and A. Botsford, while in the bill the note is described as given by A. Botsford. It is claimed this is a variance. But no objection of non-joinder was made by any of the pleadings, and the bill made profert of both note and mortgage, and also described the latter by its record. Such reference it has always been held would cure the defect of description if it were a defect. But while if this were a suit at common law the misjoinder of both makers might be ground of abatement if pleaded, it is in no sense a case of misdescription, and therefore it could not be a case of fatal variance. And it does not become important at all except as to personal liability. There is no force in the objection. It appears that lots 7, 8, 9, and 10 in block 13 have been released to defendant Weatherhead. Beyond this no releases appear, and no payments. No one but Donovan defended. He put in an answer which averred all the complainant's claim on the lands mentioned to have been discharged. This defence is not made out. And there is nothing to indicate that the discharge of Weatherhead's lots was against the rights of any of the defendants. It was done at the instance of the mortgagor.

We find no defects in the testimony of which defendants can complain. Formal defects are...