Doyle v. Howard
| Decision Date | 12 November 1867 |
| Citation | 16 Mich. 261 |
| Court | Michigan Supreme Court |
| Parties | William Doyle v. Linus Howard |
Heard October 20, 1867
Error to Washtenaw circuit.
This action was originally brought before a circuit court commissioner--under the "forcible entry and detainer act"--to recover possession of certain real estate which had been foreclosed by advertisement.
Judgment was rendered for the plaintiff below. An appeal was taken by defendant to the circuit court, and the judgment reversed.
The case comes up to this court on error.
Judgment affirmed, and the defendant in error recover his costs in both courts.
Felch & Grant, for plaintiff in error.
B. F Granger and C. A. Stacy, for defendant in error:
1. When lands are taken under a statute authority in derogation of the common law, every requisite of the statute having the semblance of benefit to the owner must be strictly complied with: 2 Hill. on Mortg., 45; 7 Hill 434; 2 Doug. (Mich.) 374.
The statutory proceedings, being ex parte, must conform in all matters to the conditions expressed by the legislature: Lee v. Mason, 10 Mich. 403.
The title of the plaintiff in error, if he has any, is derived, not from any grant, nor from any decree of a competent court, in which all the parties interested have had an opportunity to be heard, but from the force and operation of a statute enacted and asserted in opposition to the common law, and which, to say the least, may possibly, in its operation, divest the title of the mortgagor entirely without his knowledge. And it seems but common justice that the purchaser should be required to show himself clearly within the statute in every particular, and that nothing should be presumed in his favor.
2. A reference to the statute will show that in place of actual notice to the mortgagor, there was required by the law public notices to be given.
a. By publishing for twelve weeks a notice of the time and place of sale, containing certain things: 2 Comp. L., p. 1364, § 3.
b. By forthwith executing and delivering to the purchaser a deed containing, among other things, a description of the premises sold, and the price which each parcel sold for, and by depositing the same with the register of deeds: 2 Comp. L., p. 1365, § 5185.
On the performance of these conditions, the effect of an actual notice is given, and the equity of redemption is barred as by a foreclosure in equity.
The object of both these provisions is to give notice to the mortgagor, or at least to make it probable that before the time of redemption should expire, the mortgagor would have such notice of the proceedings as would enable him to pay the mortgage before sale, or redeem from the sale after it had taken place. The fact of the deed reciting the sale, and the sum for which the land sold, being on file with the register, would be more likely to give the party actual notice than the publication in a newspaper, and in case the notice was published in a paper of little circulation, or remote from the residence of the mortgagor, no actual notice would be likely to be given by publication in a paper; while the deed in the register's office would be likely to be seen, and thus give actual notice to the party interested.
But the greatest benefit arising to the owner of the land from the filing of the deed is that by the deed the owner can fix the amount of the bid, and the register can settle upon the amount necessary to be paid him, in order to redeem.
By the provisions of the statute, when the mortgage was made, the mortgagor, or his assigns, were entitled for a full year after the sale, to redeem at the register's office, by paying the amount of the bid and the interest to the register. This statute became and was a part of the contract, and by the neglect to execute and file the deed, not only is the owner prevented from redeeming at the register's office, but he has no certain means of ascertaining the amount of the bid. See 10 Mich. 403.
Even had the owner of the land, at the time of the foreclosure, seen the notice of the time and place of sale as published in the paper, still, if there was no deed filed, he had the right to suppose that in fact no sale had ever been made.
All the authorities show that a failure to publish the notice for the full term allowed by law renders the sale void--though, in fact, the defendant had actual notice.
There is more reason why the failure to file the deed should render void the sale, because not only the owner is deprived of notice in one of the forms provided by law, but also because he is deprived of a reliable means of knowledge given him by law, and also deprived of the right to redeem by payment to the register--the only place, in case of the absence of the purchaser, where the owner could redeem at all.
If a defective deed on file would render the sale invalid, certainly the entire absence of a deed from the files, and the non-execution of a deed would have that effect: 15 Mich. 45.
Martin, Ch. J. did not sit.
Christiancy J.:
This case presents the single question, whether upon a mortgage foreclosure, by advertisement, under the statute, the failure to execute and deposit the deed, or any affidavit of the facts of the sale with the register of deeds, until after the expiration of one year from the time of sale, renders the foreclosure and sale invalid. The deed in this case was not executed by the sheriff until one year and six days after the sale, and was recorded four months and twenty-five days after it was executed; and it does not appear that any affidavit of the facts connected with the sale was ever filed, recorded or made.
The right to foreclose and sell by advertisement depends wholly upon the statute, and is confined to mortgages containing a power of sale: Comp. L., ch. 157, § 1. The sale, though made by the sheriff, is still a sale under the power, which refers to the statute for the mode of its execution. The whole proceeding is ex parte, and not judicial. The statute does not require personal notice of the foreclosure and sale, but substitutes publication as constructive...
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Delfelder v. Teton Land & Investment Co.
... ... Leonard (Mo.) 172 ... S.W. 706. Full compliance with the statute is required in ... foreclosure sales under a power. 41 C. J. 943; Doyle v ... Howard, 16 Mich. 261; Dunning v. McDonald ... (Minn.) 55 N.W. 864; 19 C. J. 1151. Burden of proof was ... upon plaintiff to establish ... ...
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...the legal period of redemption and not voiding the foreclosure. Johnstone v. Scott, 11 Mich. 232, 244 (1863); see also Doyle v. Howard, 16 Mich. 261, 267 (1867). In this case, although the redemption period was not listed on the sheriff's deed it was listed on the "Affidavit of sale by Sher......
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...been subject to change by the legislature. ‘The right to foreclose and sell by advertisement depends wholly upon the statute.’ Doyle v. Howard, 16 Mich. 261. It has also ‘been repeatedly held that a foreclosure, under the statute, is an act of the party, and not a judicial proceeding, and i......
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...to sell upon foreclosure at law is confined by How. Stat. § 8497 (see notes thereto) to mortgages containing a power of sale (Doyle v. Howard 16 Mich. 261; Hebert v. Bulte 42 Mich. 489, 4 N.W. 215) such being no necessary part of a mortgage. State Bank v. Chapelle 40 Mich. 447. The equity o......