Mills v. Jirasek

• Decision Date: 04 June 1934
• Docket Number: No. 95.,95.
• Citation: 255 N.W. 402,267 Mich. 609
• Parties: MILLS v. JIRASEK.
• Court: Michigan Supreme Court

267 Mich. 609

255 N.W. 402

MILLS

v.JIRASEK.

No. 95.

Supreme Court of Michigan.

June 4, 1934.

Appeal from Circuit Court, Oakland County, in Chancery; Glenn C. Gillespie, Judge.

Suit by Clara Mills against Charles Jirasek, in which defendant filed a cross-bill. Decree for plaintiff, and defendant appeals.

Affirmed.

Argued before the Entire Bench.Schmalzriedt, Frye, Granse & Frye, of Detroit (James F. Murray, of Detroit, of counsel), for appellant.

James H. Lynch, of Pontiac, for appellee.

BUSHNELL, Justice.

Plaintiff filed a bill to quiet title to certain lands in West Bloomfield township, Oakland county, Mich., to which she claimed title by sheriff's deed. The deed was executed May 23, 1931, following a mortgage foreclosure by advertisement, but was not deposited with the register of deeds until September 14, 1931. Defendant made no attempt to redeem from the sale, but refused to recognize its validity because of plaintiff's failure to record the deed within twenty days from the date of sale. The instant suit was not commenced until the time for redemption had expired, as computed from the date of deposit of the deed. Defendant filed a cross-bill asking that he be declared the owner in fee simple of the premises. The court held the sheriff's deed valid and forever barred appellant from asserting or claiming any interest in and to said lands, or any part thereof.

The applicable part of section 14433, C. L. 1929, reads: ‘Such deed or deeds shall, as soon as practicable, and within twenty (20) days after such sale, be deposited with the register of deeds of the county in which the land therein described is situated, and the register shall endorse thereon the time the same was received, and for the better preservation thereof, shall record the same st length in a book to be provided in his office for that purpose, and shall index the same in the regular index of deeds.’

The twenty-day provision was inserted in the statute by Act No. 152 of the Public Acts of 1875. The former law required that the officer or person making the sale should ‘forthwith * * * deposit the same with the Register of Deeds of the county in which the land is situated.’

In order to determine the validity of the sheriff's deed, we must decide whether the statute is mandatory or directory, and, if directory, whether defendant is estopped to attack the validity of plaintiff's deed. Appellant claims Justice Christiancy's opinion in Doyle v. Howard, 16 Mich. 261, is controlling, and that since 1867 it has never been questioned in our subsequent decisions. Appellee contends, however, that Justice Christiancy in Doyle v. Howard, supra, departed from the rule he stated in Johnstone v. Scott, 11 Mich. 232, and that the subsequent decisions of this court have followed Johnstone v. Scott, supra, rather than Doyle v. Howard, supra.

Johnstone v. Scott, supra, was an action of ejectment in which plaintiff questioned the validity of arecorded sheriff's deed to which was attached a certificate incorrectly stating that the conveyance became absolute in one year. The statute then in force allowing two years for redemption, the defendant made no attempt to redeem, and the court held the foreclosure valid and the statute directory in so far as it pertained to the certificate, stating, however, that the erroneous indorsement could not alter the legal period of redemption.

In Doyle v. Howard, supra, also a foreclosure by advertisement, the court held the foreclosure and sale invalid because of the sheriff's failure to execute and deposit the deed or any affidavit of the facts of the sale with the register of deeds, until after the expiration of more than a year from the time of sale. Justice Christiancy there said:

‘The whole proceeding is ex parte, and not judicial. * * * It is, therefore, essential to the rights of the mortgagor and those claiming under him subsequent to the mortgage, that all the safeguards which the statute has provided for the protection of their rights should be substantially observed. And every step of the proceeding which the statute has provided for divesting their title, and the observance of which the court can see might operate as a protection to their rights, must be considered as inserted for that purpose, and for their benefit, so far as it may thus operate, and not merely as directory, or to be dispensed with, without their consent. * * *

‘And, though a mortgagor may have seen a notice of foreclosure and sale in the newspaper, yet, if, some time after the day fixed for the sale, he should, on inquiry, find that no deed had been deposited with the register, he might very properly infer that the proceeding had been abandoned without being perfected by a sale.

‘The rights thus secured to the mortgagor by the provisions in reference to the deed and its deposit with the register, are substantial rights, of which he would be deprived by the omission to execute and deposit the deed, as required by the statute. We must, therefore, hold the provisions of the statute, so far as they relate to the execution and deposit of the deed, to be mandatory, and not merely directory.’

After the foregoing language describing the provisions of the statutes as mandatory, the learned judge qualified his holding and pointed out that: ‘We do not mean to assert that the foreclosure would be void, by reason of the deed not being executed and deposited on the very day of the sale, or within a few days thereafter. But we confine our opinion to the case where no deed has been executed or deposited until after the expiration of a year from the day of sale. In such a case we entertain do doubt the sale should be treated as invalid for any purpose of conveying the title.’

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