Jehle v. Brooks

• Decision Date: 17 March 1897
• Court: Michigan Supreme Court
• Parties: JEHLE v. BROOKS ET AL.

70 N.W. 440

112 Mich. 131

JEHLE v. BROOKS ET AL.

Supreme Court of Michigan

March 17, 1897

Appeal from circuit court, Kent county, in chancery; William E Grove, Judge.

Bill by Fritz C. Jehle against Harry A. Brooks, impleaded with Henry Principaal and Mary Brooks, to foreclose a mortgage. There was a decree for complainant, and a sale for less than the amount secured. From a personal decree against defendant Harry A. Brooks for deficiency, he appeals. Affirmed.

Everett D. Comstock, for appellant.

Frank W. Hine, for appellee.

MOORE J.

This is an appeal from a decree rendered in a proceeding for a personal decree and the issuing of an execution for a deficiency in a foreclosure case. The original foreclosure proceeding was commenced by the complainant against all the defendants in this proceeding. The mortgage which was foreclosed was made by Henry Principaal. His grantee sold to Harry A. Brooks. The defendant Mary Brooks is the wife of Harry A. Brooks. Harry A. Brooks was brought in as a subsequent purchaser. His interest was stated in the bill of complaint, as required by rule 99. The subp na contained an underwriting, as required by rule 122, claiming a personal decree against Harry A. Brooks and the maker of the mortgage. Harry A. Brooks was personally served with the subp na. None of the defendants appeared in the case. Their defaults were entered; a decree was rendered; the land was sold. It did not bring enough to pay the amount of the decree, and a petition was filed for a personal decree, and the issuing of an execution against Harry A. Brooks and Henry Principaal. Proper service was had upon Harry A. Brooks. He appeared, and answered in the proceeding. A decree was rendered against him for the deficiency, from which decree he appeals.

All the errors assigned have been considered, though we may not discuss them all here. It has been repeatedly held that the validity of the decree cannot be questioned in this proceeding. Ransom v. Sutherland, 46 Mich. 489, 9 N.W. 530; Wallace v. Field, 56 Mich. 3, 22 N.W. 91; Haldane v. Sweet, 58 Mich. 429, 25 N.W. 383; Corning v. Burton, 102 Mich. 96, 62 N.W. 1040. It is urged, however, that as there was no averment in the bill of payment by complainant of taxes and insurance, and as an amount was included in the decree of foreclosure for insurance and taxes paid by complainant, the decree was invalidated, and can be questioned in this proceeding. The record shows these amounts were paid after the bill was filed and before the decree, and were included in the report of amount due. The mortgage provided for the payment of taxes and insurance, and that the amounts so paid should be a lien and we think it was proper to include the amounts so paid in the decree. Payne v. Avery, 21 Mich. 524; Vaughn v. Nims, 36 Mich. 297; Howe v. Lemon, 37 Mich 166; Johnson v. Van Velsor, 43 Mich. 209, 5 N.W 265; Hanford v. Robertson, 47 Mich. 100, 10 N.W. 125; Walton v. Hollywood, 47 Mich. 385, 11 N.W. 209. It is urged that the bill of complaint did not allege such facts as showed a personal liability on the part of Harry A. Brooks to pay any portion of the mortgage debt, and that a personal decree for the deficiency is void, and can be attacked in this proceeding. The interest of Harry A. Brooks was stated in the bill of complaint in the language required by rule 99. The bill...