King v. Harrington

• Decision Date: 31 October 1866
• Citation: 14 Mich. 532
• Court: Michigan Supreme Court
• Parties: John King, jr., v. Daniel B. Harrington

14 Mich. 532

John King, jr., v. Daniel B. Harrington

Supreme Court of Michigan

October 31, 1866

Heard October 20, 1866 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Case made for review from St. Clair circuit.

Ejectment.

The facts are stated in the opinion.

Plaintiff entitled to a reversal of the judgment, and entered judgment in his favor, with costs of both courts.

Mitchell & Farrand, and A. B. Maynard, for plaintiff:

1. The proceedings in the attachment suit were irregular and void and gave the court no jurisdiction to render judgment in the case.

a. There was no personal service of the attachment, and no appearance of defendant in the suit in which the judgment was rendered, and on which the sale was founded: 2 Comp. L., §§ 4759-4761.

b. The declaration was filed, and judgment rendered in this case, on the 8th day of November, 1849.

Before that time, no proof whatever had been made or filed of the publication of any notice. But on the 20th of December following, a notice and defective affidavit were filed in that court.

We insist that proof of the proper publication of a proper notice, as required by the statute, was prerequisite, and absolutely necessary, before the county court had jurisdiction, either to receive and place on file the declaration, or to proceed to judgment in the case, and that everything done without the required notice and proof of publication was coram non judice, and rendered the whole proceeding void ab initio.

c. There is no date nor entitling to the notice. The fact of adjournment to the November term is not required by the statute, and has no relation to the requisitions of a proper notice.

The affidavit is made over a month after the judgment, is not entitled in any cause, and only shows that the requirements of the statute were not complied with.

As to the necessity of properly entitling affidavits, see 2 Cow. 609; Burr. Prac., 342; 7 T. R., 661; 2 Dowl. P. C., 731; 3 Id. 107; 8 Taunt. 647; 2 Moore 722; 1 Mich. 115; 11 Id. 456; 8 Paige 415.

The notice cannot be said to be any part of the affidavit. It only refers to an annexed notice, and not to a notice to which the affidavit was an addition, or of which it in any manner formed a part.

The publication of notice, and proof of publication before judgment, was absolutely essential to the jurisdiction of the court. Without them, the court had no more power to act than it would have in the absence of proof of service of process. Publication was essential, and in the place of process: 2 Doug. Mich., 498, 93; 5 Mich. 98; 6 Id. 242; 1 Blackf. 215.

2. The proceeding is a special one, in which the court exercises an extraordinary jurisdiction, under a special statute, prescribing its course, and not under general powers. It can, therefore, act only according to the powers of procedure which the statute prescribes: 2 Mich. 418; 3 Id. 277; 2 Doug. Mich., 498.

The notice is equivalent to, and takes the place of, process: 11 Mich. 274.

The judgment of the county court, in the attachment suit, was void, and the rights of the parties are dependent upon the subsequent chancery proceedings and the decree. Whatever title was procured by Ashley & Minne, under the execution sale, and subsequently transferred to the defendant, was redeemed by John S. King, on the 19th May, 1851, he being a judgment creditor of John King, jr. John King, by his agents, on that day, and within the time limited for redemption, went to the register and offered him the money to redeem with, but he, after receipting it as paid, not being satisfied to take a check for part of the amount, went with the agent to Detroit, where the full amount was paid to him, and before going, he indorsed on the certificate of sale a receipt in full. This was a full redemption, and so afterwards held by the Supreme Court, as appears by the judgment of that court.

The fact that the money was in St. Clair the next day, and that the purchasers, insisting on technical time, had procured a deed from the sheriff before the return of the register, can make no difference with the fact of the redemption, nor in any way affect or do away with the decision of the Supreme Court upon the mandamus, of which all parties in interest must be presumed to have had notice.

The deed then, from Whitman, the sheriff, to John S. King, under the order of the Supreme Court, and from him subsequently to the plaintiff, re-invests him with all the title undertaken to be conveyed in the sheriff's sale. The purchase money was deposited, and has ever been in the register's hands, ready to repay the price they bid for the land.

3. But it is insisted by the defense that this redemption was set aside, and the title confirmed in the defendant, in the chancery proceedings of Harrington v. John S. and John King, jr.

We insist, on the contrary, that those proceedings were entirely ex parte, and were a fraud upon the court.

a. The bill did not advise the court of the facts as they existed. This was a fraud upon that court, and no claim, procured by deception or suppression of facts, ought to be considered as binding or conclusive. The decree is, therefore, open to objection, as well as to review.

b. The bill only sought to set aside the redemption, and in no way raised the question of the validity of the judgment, or of the attachment proceedings.

The intent and scope of the bill was simply to set aside and do away with the attempted redemption and the subsequent deed. It did not attempt to reach the title of John King, jr., except as affected by that redemption, and the court of chancery was not called upon to pass upon the validity or invalidity of the judgment upon which the complainant's title rested. Any decree founded upon that bill must be within the direct scope of the bill, and if it went further, or adjudged upon matters not brought or offered in issue by the bill, it was void pro tanto.

The decree undertakes to declare that the defendants had no title to the lands, a fact not put in issue by the bill, and upon which, had an answer been interposed, no issue could have been made or tendered.

A decree must be founded on, and in conformity with, the allegations and proofs; and cannot be based upon a fact not put in issue by the pleadings: 1 Barb. Ch. Prac., 339; 10 Wheat. 181; 3 Litt. 339.

But the decree does not undertake to defeat the defendant's title; it only declares "that the said John King, jr., had not at the time of filing said bill of complaint had no interest in said lands"--a double negative, affirming his title.

But even if it did undertake to defeat the plaintiffs' (defendants in that suit) title, or to correct the judgment, it could not properly so do; and a decree of the court of chancery, in that regard, was not only irregular, but of no effect, and void.

A decree in equity can not invest a legal title; it can only direct a party to convey: 1 Ind. Ch., 143. A bill calling upon a court to decide a question of title, which is neither a bill of peace, a bill quia timet, nor a bill to perpetuate evidence, can not be sustained: 2 Leigh 540. A court of equity has no power to perfect judgment at law: 24 Me. 42.

Equity cannot correct irregularities in a court of law: 1 Freeman's Ch'y, 472; 8 Paige 373; 9 Id. 386. If a court of chancery has no jurisdiction of the subject matter, its decree is invalid: 4 Black 249.

The decree referred to in this case finds no facts. The decree must find facts upon which it is founded. When a decree declared a note to be void, without finding the facts to warrant decree, it is erroneous: 1 Root 207; 10 Yerg. 41; 1 Vern. Ch'y, 213; Id., 215.

4. But we insist that this decree, so far as it affects the title to these lands, and the rights of the defendants, is void. The defendants were non-residents, had no notice, and never appeared in the case, and the decree has never been confirmed. To make a valid and binding decree, all the proceedings should have been regular, and the court had no power to grant a decree without full proof of regularity. We, therefore, insist that plaintiff's title is absolute, and that he is entitled to judgment.

D. C. Holbrook, for defendant:

1. The plaintiff himself shows title through the redemption by John S. King of the Atwater attachment proceedings. If he claims through the sale on attachment, then he is compelled to admit that those proceedings were regular, and he then has to prove that John S. King adopted the necessary steps to enable him to redeem.

The defendant in error of course is not bound, nor was his title defeated, by the mandamus proceedings against the plaintiff in the Supreme Court. That was an ex parte proceeding as against every one except the plaintiff, and it was merely to make him give a deed.

If the plaintiff claims that the attachment proceedings were void, and John S. King having redeemed, not purchased on a sale, his title also failed, and he may fall back on his original title. In this view he will have to show the attachment proceedings are void.

In either case, the defendant claims title by virtue of the attachment...