Brown v. Thompson

• Decision Date: 29 January 1874
• Citation: 29 Mich. 72
• Court: Michigan Supreme Court
• Parties: Frederick C. Brown v. John S. Thompson and another

29 Mich. 72

Frederick C. Brown v. John S. Thompson and another

Supreme Court of Michigan

January 29, 1874

Heard January 16, 1874

Appeal in Chancery from Calhoun Circuit.

Foreclosure. Defendant Thompson appeals. Sale and decree set aside, and cause remanded.

Sale and decree set aside, with costs of both courts, and the cause remanded to the circuit court.

Alvan Peck and John C. Fitzgerald, for complainant.

Rienzi Loud and T. G. Pray, for defendant John S. Thompson.

Campbell J. Graves, Ch. J., and Cooley, J., concurred. Christiancy J., did not sit in this case.

OPINION

Campbell J.

John S Thompson appeals from an order refusing to vacate a sale in chancery made under a decree for the payment of installments of a mortgage, which had become due since the first decree.

That decree was satisfied without a sale. John S. Thompson was brought in as a subsequent purchaser or incumbrancer, and by publication as an absent defendant. Rensselaer Thompson, the mortgagor, was personally served but made default. Neither party defendant appeared in the suit before the original decree, which was entered March 8, 1871.

On the 6th day of December, 1872, complainant swore to a petition setting up the fact that two further installments, amounting with interest to one thousand two hundred and twenty-eight dollars and eighteen cents, had become due, and praying for a further decree. Upon this ex parte petition, without any notice to either defendant, and without any reference or proof, a decree was made December 23, 1872, for a sale for the amount alleged in the petition. No time was allowed for payment. A sale was at once advertised, and on the 15th day of the ensuing February, 1873, the whole premises were bid off by, and conveyed to complainant on commissioner's sale. The report of sale was filed and ruled nisi for confirmation entered on the 17th day of March, 1873. A petition for opening the sale was presented March 12, 1873, and amended petitions on several succeeding days, and refused by the court. The register has failed to return these papers, and we are not therefore informed what defects were supposed to exist in them. It was his duty to return the entire record, and not attempt to determine what is or is not material. But their contents would not change the result we are compelled to reach, and therefore it is not necessary to discuss them. A petition was presented and counter affidavits filed in the latter part of June, 1873, and on the 18th day of July, 1873, the circuit court dismissed it, and refused to disturb the sale.

A part from questions affecting the regularity of the proceedings, this petition set up several important facts: first, payment of a part and extension of time on another part of the installment claimed; and, second, the death of Rensselaer Thompson before the petition of complainant for a further decree had been filed; and third, that defendant John S. Thompson (who is a non-resident, but who had a local agent authorized to act for him, and known to complainant), had owned the lands for several years. The facts concerning the defendant's equities were verified by his agent, William Bothwell. Complainant gave a different version of the arrangements, and relied on his proceedings.

These main facts all went to the merits of the decree, and could not be finally tried on affidavits. But the affidavits on both sides show very plainly the danger of allowing any such practice as has been resorted to.

Where a mortgage is made payable in different installments, each installment is so far separate from the rest that a payment before decree of the amount due, puts an end to the suit.-- Comp. L., § 5157. It is only by virtue of the statute that such a payment after decree does not have the same effect.-- § 5158. The effect of a default in such a case can only be to admit the securities as alleged, and the amount then due. It cannot operate as an admission of any matter ex post facto, and therefore the non-payment of any future installment can only be established when the fact is alleged of record, and the defendant has an opportunity to meet it. He is not bound to deny allegations before they are made.--Albany City Bank v. Steevens Walk., Ch. R., 6; Perkins v. Perkins, 16 Mich. 166. The proceeding to obtain a further decree is essentially a new suit in all except form, and we think the dictum in Walker's Reports, to the effect that no one but the mortgagor is entitled to notice, is not authorized by legal principles. Every...