Lee v. Clary

• Decision Date: 22 January 1878
• Citation: 38 Mich. 223
• Court: Michigan Supreme Court
• Parties: Charles Lee and William Barrett v. Samantha C. Clary

38 Mich. 223

Charles Lee and William Barrett v. Samantha C. Clary

Supreme Court of Michigan

January 22, 1878

January 15, 1878; January 16, 1878, Submitted

Error to Saginaw.

Ejectment. The facts are in the opinion.

Judgment reversed with costs and a new trial granted.

Gage & Gage for plaintiffs in error. Purchasers under foreclosure proceedings and holding adversely under color of title conferred by the sheriff's deed (Woodward v Blanchard, 16 Ill. 424; Brooks v. Bruyn, 35 Ill 392) have the right to defeat recovery in ejectment against them by showing title in a third person, Jackson v Rowland, 6 Wend. 667; Bloom v. Burdick, 1 Hill 130; Gillett v. Stanley, id., 121. The sheriff's deed is the only written evidence of the sale required by law to be executed or preserved, Doyle v. Howard, 16 Mich. 266; no law authorizes the affidavit of publication and sale to be filed, and such filing is not binding as notice, Dutton v. Ives, 5 Mich. 518; Galpin v. Abbott, 6 Mich. 17; Wing v. McDowell, Walk. Ch., 175; Woods v. Love, 27 Mich. 308. A transfer of a mortgage without the debt is a nullity, Ladue v. D. & M. R. R. Co., 13 Mich. 396; Bailey v. Gould, Walk. Ch., 478; Jackson v. Bronson, 19 Johns. 325; Merritt v. Bartholick, 36 N. Y., 44; McMillan v. Richards, 9 Cal. 410; Ord v. McKee, 5 Cal. 335. A quit claim from the mortgagee only operates to assign the mortgage where the personal security is delivered or where there is none, Johnson v. Lewis, 13 Minn. 364. Plaintiff in ejectment must show that he had title before the ouster complained off took place, Siglar v. Van Riper, 10 Wend. 414; Buxton v. Carter, 11 Mo. 481; Tuttle v. Jackson, 6 Wend. 213. A mortgage sale will not be invalidated by any mistake in the notice not likely to mislead, Judd v. O'Brien, 21 N. Y., 186; Wilson v. Troup, 2 Cow. 195; Powers v. Kueckhoff, 41 Mo. 425; Stephenson v. January, 49 Mo. 465; Leet v. McMasters, 51 Barb. 236.

D. W. Perkins for defendant in error. Where both parties in ejectment claim through the original owner, the better title prevails and defendant cannot set up claim of other title, Jackson v. Jones, 9 Cow. 182; Pollock v. Maison, 41 Ill. 516; Holbrook v. Brenner, 31 Ill. 501; Johnstone v. Scott, 11 Mich. 232; Dexter v. Rheomes, 13 Wis. 99; McClure v. Engelhardt, 17 Ill. 50; Griffin v. Sheffield, 38 Miss. 359.

OPINION

Campbell, C. J.

The defendant in error, Mrs. Clary, brought ejectment against defendants below, claiming title under a conveyance from her mother, Ermina Liver-more, dated April 21, 1875, and acknowledged May 7, 1875, the day suit was begun.

Defendants sought to defend (1), by showing a tax title to Michael Jeffers deeded to him in 1873 for taxes of 1866; and (2), by title under mortgage foreclosure under a mortgage given by Mrs. Livermore to William C. Chambers July 9, 1868.

The tax title was ruled out on the ground that it showed title in a stranger to the suit.

An objection was made that it contained more than one parcel. The deed is not recited, and we do not therefore decide whether or not this objection would have been well taken. It is not important under the other questions to be decided.

We do not perceive on what ground this ruling against showing title in a third party was made. Plaintiff disputed the mortgage foreclosure. If that was not valid then the defendants could not be said to hold possession under their mortgage, for an unforeclosed mortgage gives no possessory right. Newton v. McKay, 30 Mich. 380. There was no more reason why defendants should be debarred from showing divestiture of plaintiff's title by tax sale than by her own deed to a third person. She could not recover without title, and any thing showing its absence would defeat her claim. Defendants did not enter as her tenants, and are not estopped from disputing her present rights. Inasmuch, however, as the case must be retried, it becomes necessary to consider whether defendants have any title of their own. They claim under a mortgage foreclosure and deed to Lee. The sheriff's deed on the foreclosure under the statute was made December 22, 1873, by virtue of a sale made on that day. An advertisement had been published for the proper time, beginning September 25, 1873, in the name of Lee as assignee of the mortgage. The regularity of this is attacked, partly on the ground of certain previous advertising, and partly for defects in the form of the notice and in Lee's own title.

It appears that certain proceedings had been commenced by advertisement in August, 1873, and discontinued. Also that proceedings had been taken in 1870, in which the mortgage otherwise correctly described was set forth as made by Emma Livermore, and not Ermina. If this sale of 1870 was correct, then it conveyed a perfect title and the later proceedings were of no account. It was held invalid on the objection of the plaintiff below, and we think correctly, as the statute requires the notice of sale to give the name of the mortgagor. Comp. L., § 6915.

Before the proceedings to foreclose in 1873, Lee, doubtless supposing this foreclosure regular, had conveyed one of the two parcels of the mortgaged lands to each of his two daughters by warranty deeds. One of these daughters was dead, leaving him her heir. It is now claimed he had ceased to be the sole owner of the mortgage, and therefore could not foreclose in his own name.

No doubt his grantees under the deeds could enforce a right in equity to prevent any action on his part to their prejudice, and any title he might obtain by foreclosure would enure by estoppel under his warranty. But as the debt was what the mortgage secured, and as the legal title to this remained in him, he was still the legal holder of the mortgage and entitled to enforce it for the benefit of any one who might be interested. It had not ceased to be held in his name, and no one else could foreclose it at law.

It is objected further that his notice of September is void as not showing the fact of the commencement and discontinuance of the previous proceedings. The statute forbids the beginning of a statutory foreclosure if any "suit or proceeding shall have been instituted at law, to recover the debt then remaining secured" unless "the same has been discontinued, or that an execution upon the judgment rendered therein has been returned unsatisfied in whole or in part." § 6913. This statute clearly refers to suits on the debt, and not to foreclosure...