Jenks v. Horton

• Decision Date: 16 July 1897
• Citation: 72 N.W. 20,114 Mich. 48
• Court: Michigan Supreme Court
• Parties: JENKS v. HORTON ET AL.

72 N.W. 20

114 Mich. 48

JENKS v. HORTON ET AL.

Supreme Court of Michigan

July 16, 1897

Appeal from circuit court, St. Clair county, in chancery; James B Eldredge, Judge.

Bill by William L. Jenks against Rebecca Horton and others. From a judgment for defendants, plaintiff appeals. Affirmed.

P. H Phillips, for appellant.

Chadwick & McIlwain, for appellees.

HOOKER J.

Rebecca Horton was the owner of a life estate in certain lands, and it was a duty that she owed to the reversioner to pay the taxes during her occupancy. This she failed to do, and, for his own protection, the reversioner paid them, and, upon a bill filed by him, it was decreed by this court, on appeal that the amount of such taxes constituted a lien upon the premises, and that the same be sold to pay them, unless paid within 60 days. See Jenks v. Horton, 96 Mich. 15, 55 N.W. 372. Subsequently her estate in the premises was sold, under the decree, and brought the sum of $50. This was followed by a petition for an execution for the deficiency. In answer to this petition, it is said that Mrs. Horton averred that the complainant received and accepted, as satisfaction for said claim, a deed of said premises. Her answer does not appear in the printed record, but the statement in the brief is not disputed, and is corroborated by the replication filed. The replication denies her averment as to such adjustment. The circuit court, in chancery, dismissed the petition, upon a full hearing upon pleadings and proofs, by an order couched in the following language: "The petition of the above-named complainant for execution for deficiency in the above cause coming on to be heard on the pleadings filed therein, and testimony taken before me, and after hearing Phillips & Jenks, for complainant, and A. E. Chadwick, for defendant, and it appearing to the court that there is no provision of law authorizing the issuance of execution by this court, for the deficiency arising from the sale of premises under the decree rendered in said cause, it is hereby ordered, adjudged, and decreed that the above-named petition is hereby dismissed, with costs to defendant." From this order no appeal was taken. Previous to the entry and filing of the order (but five days after the date thereof), the bill in the present cause was sworn to. The date of its filing does not appear, and is of no consequence upon this record. This bill alleges the complainant's claim and the proceedings in the former cause, up to and including the sale under the decree of this court, and states that upward of $400 is still due to the complainant upon the decree, and that Rebecca Horton refuses to pay, and has no property which can be reached by execution, but that she is possessed of rights, under a decree of this court, against one Henry Howard, to the annual payment of $280, and by the terms of which the sum of $280 becomes due and payable on October 15, 1894, from the executors of Henry Howard, he being dead. It was further alleged by the bill that said claim was by said decree made a lien upon certain real estate in Port Huron. It makes Rebecca Horton and the executors of Howard parties defendant, and prays that the latter be required to pay to the complainant the sum due from said estate to the said Horton, and that her interest in said estate be sold to satisfy the complainant's claim. The defendants all appeared, and answered, denying the jurisdiction of the court in the premises, and Rebecca Horton alleged a former adjudication of the question, and asserted the settlement and satisfaction of the decree. Upon a hearing, on pleadings and proofs taken in open court, the court found, as evidenced by the decree, that "the bill is without equity, and complainant is not entitled to decree thereunder"; and the bill was dismissed, "without prejudice to any existing right in the complainant to his action at law, this decree, however, not being construed as authorizing any action at law."

The decree of the circuit court in the original case is not before us, and we cannot therefore determine that it adjudged the defendant was indebted to the complainants. If it did, we see no obstacle to further proceedings to obtain execution to collect the amount, if the property sold proved inadequate. How. Ann. St. � 6653, gives to courts of chancery authority to issue execution to enforce decrees. If, however, it merely gave relief to the extent of subjecting her life estate to the payment of the debt that was a lien upon it, it would follow that the complainant has no judgment or decree that will support an execution; and this would seem to have been the view of the circuit judge, who denied the application for execution, upon the ground "that there is no provision...