Detroit Trust Co. v. Agozzinio

• Decision Date: 07 June 1937
• Docket Number: Nos. 142,143.,s. 142
• Citation: 280 Mich. 402,273 N.W. 747
• Parties: DETROIT TRUST CO. v. AGOZZINIO SAME v. CHERRY.
• Court: Michigan Supreme Court

280 Mich. 402

273 N.W. 747

DETROIT TRUST CO.

v.AGOZZINIO

SAME

v.CHERRY.

Nos. 142, 143.

Supreme Court of Michigan.

June 7, 1937.

Two suits by the Detroit Trust Company, surviving executor of Mary Hinchman, deceased, against Anthony Agozzinio and Frank Cherry. From a judgment of restitution in each suit, defendants appeal.

Affirmed.

Appeals from Circuit Court, Wayne County.

Argued before the Entire Bench.

M. D. Smilay, of Detroit, for appellants.

Anderson, Wilcox, Lacy & Lawson, of Detroit, for appellee.

BUSHNELL, Justice.

This cause has already been here on appeal on the question of the validity of service of summons. See Detroit Trust Co. v. Doe (Agozzino), 276 Mich. 507, 267 N.W. 649. The question now involved is: ‘Where, in foreclosure of mortgages by advertisement, the statute (Comp.Laws 1929, § 14429) provides that the sale shall be at public vendue to the highest bidder, is it a compliance with the statute where sale is struck off on one bid to a representative of the mortgagee without competition?’

The trial judge said:

‘It appears in the mortgage advertisement that the sale was specified at a certain date and time and in a certain place. I recognize the fact that a public auction sale cannot always be adjourned to some other date; and on the other hand, I realize that there is no rule of law that requires any such course of action. An auction sale to be valid is not dependent upon the number of bidders present, but on whether or not any bids are offered. If any bid is offered, it may be either accepted or rejected on the terms of the sale. If only one bid is offered, and that bid is thought proper and accepted, the sale is just as valid and binding as if there were one hundred bids, ranging greatly in price.

‘I am constrained to hold that in this case the sale of the property was properly held; and in view of those two holdings, then I further am constrained to hold that judgment must be entered for plaintiff in the two cases before the court and that the plaintiff is entitled to a writ of restitution.’

Appellants ask that the judgments of restitution be set aside and that the mortgage sale be declared invalid. They say in thier brief:

‘We have been unable after diligent search to find any interpretation of this statute as laid down by the court. We believe it is high time this matter is clarified. Day by day so-called ‘sales at public vendue’ in mortgage foreclosure cases are held in this county, which are nothing more than private sales in the guise of public auctions at the fixed price, viz., the sum due the mortgagee, and are invariably sold to the mortgagor or his representative on the first bid. A stop should be put to this face so that owners of mortgaged property may have at least a gambler's chance to realize something on their investment.'

The cited statute, section 14429, supra, reads:

‘The sale shall be at public vendue, between the hour of nine (9) o'clock in the forenoon and the setting of the sun, at the place of holding the circuit court within the county in which the premises to be sold, or some part of them, are situated, and shall be made by the person appointed for that purpose in the mortgage, or by the sheriff, under sheriff, or a deputy sheriff of the county, to the highest bidder.’

The terms of the statute are clear and unambiguous, and do not require either interpretation or clarification. There is nothing in the record before us to indicate that plaintiff failed to observe any of the statutory requirements of the foreclosure of its mortgage by advertisement (Comp.Laws 1929, §§ 14425-14445, inclusive, as amended by Pub.Acts 1931, No. 107).

Defendants might have bid at the foreclosure sale if they had desired to do so.

‘It is of the essence of an auction that there shall be full and free opportunity for competition among bidders.’ Manhattan Taxi Service Corp. v. Checker Cab Mfg. Corp., 253 N.Y. 455, 171 N.E. 705, 707, 69 A.L.R. 1190.

The record...