Mickle v. Gould

• Decision Date: 29 November 1879
• Court: Michigan Supreme Court
• Parties: PHILIP MICKLE v. AMOS GOULD and others.

3 N.W. 961

42 Mich. 304

PHILIP MICKLE v. AMOS GOULD and others.

Supreme Court of Michigan

November 29, 1879

A mortgage was made by A. and B., covering lands owned by each of them, in severalty, to secure the individual indebtedness of A.B.'s position was that of surety only, and the mortgage contained a provision that the lands of A. should be first charged with the payment of the debt. On foreclosure the bill was taken as confessed except as against one defendant claiming a portion of A.'s lands as subsequent purchaser, and on the hearing upon his answer B.'s lands were ordered first sold. Petition for rehearing was denied and after enrollment a bill of review was filed to have the decree as to the order of sale changed, and sale made in pursuance of the provision in the mortgage. Held, that purchasers of the mortgaged property, taking conveyance subsequent thereto, took subject to the mortgage provisions in regard to the order in which security should be resorted to, and that it was proper to correct the decree, in this particular, by bill of review. A bill of review is proper after enrollment, where rehearing is the remedy before enrollment.

Appeal from Saginaw.

Wisner & Draper, for complainant.

E.R Hutchins, Benton Hanchett and A. Trask, for defendants.

CAMPBELL C.J.

This case comes up on appeal from a decree rendered upon a bill of review filed in pursuance of an order which was before us at the June term, 1878, under the title of Maxfield v Freeman et al., 39 Mich. 64. The questions in controversy, so far as now material, are as follows:

On February 14, 1872, a mortgage was made by Jared Freeman and wife, and complainant and wife, to defendant Hiram Maxfield, for $2,000, payable in five years, with interest semi-annually at the rate of 10 per cent. per annum. This mortgage covered certain lands in town 9, north of range 2 east, belonging to Freeman, and certain other lands in town 10 north, ranges 2 and 3 east, belonging to complainant.

The debt was an individual debt of Freeman's, and complainant gave the mortgage on his lands and joined in the bond for Freeman's accommodation. The mortgage contained, at the close of the power of sale, this provision: "The said lands in township (9) shall be first charged with the payment of said sum."

On the tenth of July, 1876, Maxfield filed his bill in the circuit court for the county of Saginaw to foreclose this mortgage, making parties as subsequent encumbrancers, Amos Gould and various others, all of whom are defendants to this bill of review. The bill referred to the mortgage in the usual way, and only set up such conditions as concerned complainant, making no express reference to the condition fixing the order of sale.

The bill was taken as confessed against all the defendants except Gould, who answered, setting up tax titles on all the lands in town. 9, and also purchases of the original title of Freeman of a portion. He also averred that the defendant, Walter B. Mickle, had purchased the other lands in town. 9, and as part of the consideration had agreed to pay the entire mortgage. He claimed that the lands in town. 10 should be sold first.

On the hearing under the original bill, the complainant's proofs were confined to the bond and mortgage. Gould introduced no testimony except the deposition of the register of deeds, swearing to the correctness of a certificate, which he appended, purporting to show the state of the title of the lands in towns 9 and 10. This certificate stated that the lands in town 10 were still in the mortgagors. It showed title in Lorenzo Wallace of 40 acres, February 1, 1873; Amos Gould, 80 acres, May 27, 1872; and Walter B. Mickle of another part of the lands in town 9, obtained January 10, 1874; and later deeds of the other lands, part to Peter Foster in December, 1874, and to Gould in person and through mesne conveyances of the remainder, all of later dates. No copies of any of the deeds were put in, and there was no proof of tax titles.

A decree was entered on the fourteenth day of May, 1877, which required the lands in town 10 to be sold first, and which also, was to be without prejudice to Gould's rights, derived from tax sales, under which he was therein stated, without any evidence to that effect, to be in possession.

On the thirteenth of June, 1877, before the decree was enrolled, a petition for rehearing was filed, which was retained by the court until July 13, and then, for what reasons we do not comprehend, was denied. Thereupon, inasmuch as the decree had been enrolled, and the time or appealing from it was understood to have expired, a petition was filed for leave to file a bill of review. This petition was granted, and the bill was filed, claiming error in not requiring the lands in town 9 to be sold first.

After the bill was filed (the order having been held by this court to be one which could not be appealed from) Gould moved to dismiss on various grounds, including one that the decree had not been performed, and that no security had been given, as required by rule 101. The court allowed security to be given, and refused to dismiss. The security was ordered to pay complainant any deficiency arising upon sale.

Gould then put in an answer, taking issue on the allegations concerning the origin of the debt, and averring that by certain transactions with Walter Mickle, in which he claimed Philip Mickel was the real party in interest, they had bound themselves to pay the mortgage and lost any right of preference in the order of sale. He also undertook to deny that the proceedings had been enrolled. He also set up his tax titles.

Gould was subsequently allowed to amend his answer by setting up that Philip Mickle had conveyed away his interest in the lands in town 10. Testimony was allowed to be received, showing that Philip Mickle had sold a considerable portion of these lands, and had given warranty deeds to most of the purchasers. There was also testimony upon the subject of arrangements making him bound to pay the mortgage, but we do not think that point made out by the proofs. The decree was modified so as to require the property in town 10 to be sold last instead of first. Gould appeals. Various objections are made bearing chiefly on questions of practice. The objection that the proceedings were not enrolled is unfounded. It rests on the claim that certain costs had not been taxed, and the bills were not included in the enrollment. This might have been a good reason for having the bills subsequently included among the enrolled papers, but it could not undo the enrollment actually made.

The objection that the decree has not been performed is not applicable. Without deciding how far rule 101 abrogates the old practice of substituting security for performance, it is enough in the present case to point out that under the decree as made there was nothing for Mickle to perform. Until the land should be sold, and a deficiency reported, there was no personal liability which could be enforced against him. Johnson v. Shepherd, 35 Mich. 115; Howe v. Lemon, 37 Mich. 164; Gies v. Green, October, 1879, 42 Mich. 107, 3 N.W. 283.

It is also very questionable how far any one but Maxfield, the complainant in the original bill, could set up any such defect if it existed. He is the only person to whom the decree gave affirmative relief, and the only one, therefore, who could demand its enforcement. If appealed from, he would very clearly have been the party to be provided for by the appeal bond. We have no doubt that Gould cannot raise the question concerning the security under rule 101, nor object that the security was not given earlier.

Neither have we any doubt that the case is a proper one for a bill of review. Whatever may be the technical rule concerning testimony at large, as open to consideration on such a bill under the English practice, it is very clear in our opinion that a mortgage or other security which is set forth and referred to in the bill and made the ground of relief, is a necessary part of the record. It was not denied in the answer, and...