Horton v. Howard

• Decision Date: 11 April 1890
• Citation: 44 N.W. 1112,79 Mich. 642
• Court: Michigan Supreme Court
• Parties: HORTON v. HOWARD et al.

44 N.W. 1112

79 Mich. 642

HORTON v. HOWARD et al.

Supreme Court of Michigan

April 11, 1890

Appeal from circuit court, St. Clair county; ARTHUR L. CANFIELD Judge.

Ejectment by Rebecca Horton against Henry Howard and Antoine Marontate. Judgment for defendants, and plaintiff appeals.

Chadwick & Wood, for appellant.

Atkinson, Vance & Wolcott, (H. W. Stevens of counsel,) for appellees.

CHAMPLIN C.J.

The plaintiff brings ejectment. The parties claim title from a common source. The plaintiff claims title to an undivided one-eighth of certain premises through a deed executed on a foreclosure of a mortgage upon the premises in question pursuant to a decree of the circuit court for the county of St. Clair, in chancery. In this suit for foreclosure the complainants were Rebecca Horton, Carlos D. Horton, and Etta M. Beard; John Hibbard, William B. Hibbard, and others were defendants, The bill was taken as confessed against the Hibbards for want of appearance. The circuit court was presided over and the final decree signed by Hon. EDWARD W HARRIS, circuit judge. The claim is now made that the decree is void on account of the relationship of the circuit judge to the complainants in the cause, which was as follows: The wife of Judge HARRIS was at the time the decree was signed a niece of Rebecca Horton. Said Rebecca Horton and the father of Judge HARRIS' wife were sister and brother. The judge was cousin by marriage of said Carlos D. Horton and Etta M. Beard, who were children of Rebecca Horton. Such relationship was known to said parties at the time of rendition of the decree. Section 7245, How. St. Mich., enacts: "No judge of any court can sit as such in any cause in which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties." This statute, mandatory in its terms, voices the universal sentiment of mankind excluding judges from sitting in cases where they are parties or are interested. It extends and applies the prohibition of the common law relative to jurors, from sitting in cases of kinship or affinity by marriage, to judges, and disqualifies them within the prohibited degrees, which at the common law has been held to extend to the ninth. It will not be necessary, under the record in this case, to discuss the exceptions which some courts hold to exist from necessity. The circuit judge was a nephew by marriage of one of the complainants, and a cousin of the other two, and was disqualified from sitting in the cause or signing a decree therein.

The next question is whether the decree is void, or merely voidable. No judge can sit in his own cause. Should he do so, a decree rendered by him in his own favor would be utterly void. If he cannot sit, his seat in a judicial sense is vacant, and his acts are without judicial sanction. The inhibition of the statute is the same where he is related to a party to a cause, and the result is the same. The authorities are numerous, and nearly uniform, which hold that a judgment or decree rendered by a judge contrary to a statute like ours is void, and may be attacked collaterally. Foot v. Morgan, 1 Hill, 654; Oakley v. Aspinwall, 3 N. Y. 547; Estate of White, 37 Cal. 192; Chambers v. Hodges, 23 Tex. 104; Fecheimer v. Washington, 77 Ind. 366; Hall v. Thayer, 105 Mass. 219; In re Ryers, 72 N.Y. 1; In re Manufacturing Co., 77 N.Y. 101; Railway Co. v. Howard, 20 Mich. 25; Stockwell v. Board, 22 Mich.

349; Shannon v. Smith, 31 Mich. 452; West v. Wheeler, 49 Mich. 505, 13 N.W. 836. Nothing can be claimed by way of estoppel where the party against whom the judgment has been rendered or decree pronounced has neither appeared nor consented to the exercise of judicial functions by the disqualified judge. Neither was the decree validated by the incidental mention of the rights of the parties to the mortgage foreclosed in the case of Pool v. Horton, 45 Mich. 404, 8 N W. Rep. 59. It is true that the opinion states the fact of the foreclosure of the mortgage by Rebecca Horton, Carlos D. Horton, and Etta M. Beard, but the validity of that foreclosure was not in issue, and the priority of their rights was not made to depend upon the foreclosure, but upon the date of their mortgage, and their equitable rights under it.

It appears from the finding of facts that a sale was made under the foreclosure decree questioned here, on July 21, 1879; and the premises, being an undivided one-fourth part, were bid in by the complainants Rebecca Horton and Etta M. Beard, and conveyed to them jointly by commissioner's deed; and it further appears that defendant Howard became a purchaser at foreclosure sales of two other mortgages, covering the property in dispute, but both of which were subject to the mortgage under which the plaintiff claims. He also purchased of the First National Bank its claim acquired through a foreclosure sale upon a mortgage which was also subsequent and subject...