Hebert v. Bulte

• Decision Date: 20 January 1880
• Court: Michigan Supreme Court
• Parties: JOHN HEBERT v. CHRISTIAN BULTE.

4 N.W. 215

42 Mich. 489

JOHN HEBERT v. CHRISTIAN BULTE.

Supreme Court of Michigan

January 20, 1880

On proceedings before a commissioner to recover the possession of property, on the ground that the defendant was holding over after foreclosure, plaintiff introduced in evidence a sheriff's deed to himself, indorsement thereon as to when it would become operative, foreclosure advertisement, and the affidavit specified in section 6926, Comp.Laws; but no evidence of the mortgage was given. Held, insufficient to authorize recovery.

Error to Wayne.

Moore, Canfield & Warner, for plaintiff in error.

Edwin F. Conely, for defendant in error.

GRAVES J.

Bulte commenced a summary proceeding before a circuit court commissioner, under Comp.Laws, c. 211, to recover possession of certain premises in Detroit.

He based his complaint on section 6706, and at the trial rested his right to recover upon an alleged purchase made at a foreclosure sale, under the statute regulating foreclosure by advertisement. Comp.Laws. c. 218.

After proving that Hebert was in possession and that the premises had been demanded of him, he gave in evidence a deed to himself from the sheriff, the sheriff's indorsement that the deed would become operative December 15 1878, the foreclosure advertisement, and the affidavits specified in section 6926, and rested. No evidence was given of the mortgage. The commissioner then heard the evidence on the part of Hebert and decided that he held against the right of Bulte, and that the latter was entitled to possession.

The case being taken by certiorari to the circuit court, the judgment was affirmed and Hebert brought error.

At the hearing the case was very fully discussed on one or two points, which, upon the views we feel compelled to take, are not material to the result.

It is objected that in consequence of the want of evidence of the mortgage Bulte not only failed to show that Hebert was holding over after foreclosure, as alleged, or holding against his right, but also failed to show that he, Bulte held any title, and therefore that he made out no case whatever.

The result depends on the question whether the deed and affidavits were sufficient by themselves to establish a completed title in Bulte through valid foreclosure.

The deed was no evidence of legal foreclosure (Barman v Carhortt, 10 Mich. 338) and we must therefore inquire whether the affidavits were. The statute autho...