People's Mortg. Corp. v. Wilton

• Decision Date: 20 March 1926
• Docket Number: No. 168.,168.
• Parties: PEOPLE'S MORTGAGE CORPORATION v. WILTON et al.
• Court: Michigan Supreme Court

234 Mich. 252

208 N.W. 60

PEOPLE'S MORTGAGE CORPORATION

v.WILTON et al.

No. 168.

Supreme Court of Michigan.

March 20, 1926.

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

Bill by the People's Mortgage Corporation against Hugh Wilton and others. From a decree dismissing the bill, plaintiff appeals. Reversed and rendered.

Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.Rich & Brown, of Detroit, and Pelton & McGee, of Pontiac, for appellant.

E. L. Phillips and A. L. Moore, both of Pontiac, for appellees John M. King and Roxy L. King.

FELLOWS, J.

Defendants King are the fee owners of a farm in Oakland county; they sold it on contract to defendant Hugh Wilton. Plaintiff recovered a judgment in an action at law against him. Before execution was issued, he assigned his interest in the contract to his wife, defendant Grace Wilton. Levy was made under the execution when issued. The Wiltons left the state. Defendants King commenced summary proceedings against them to recover possession of the farm; they were brought in by publication. Defendants King had judgment for restitution on August 21, 1924, and $1,408.42 was found to be the amount due on the contract. This bill was filed September 18, 1924. By it plaintiff seeks, as to defendants Wilton, the setting aside as fraudulent the assignment of the contract from Hugh Wilton to his wife, and as to defendants King the right to redeem. By the bill, plaintiff tendered the amount due the Kings and costs, and deposited with the clerk such amount. On filing the bill, a summons and an injunction restraining defendants King from proceeding further with the summary proceedings were issued and placed in the hands of the sheriff for service. They were not served until the 27th. Defendants Wilton were brought in by publication and their default duly entered. Defendants King answered issuably and upon a hearing the bill was dismissed. Plaintiff appeals.

Some minor questions should be first disposed of. They require little discussion. This bill is clearly a bill in aid of execution, and is maintainable, if the facts support its allegations. Section 12897, C. L. 1915, as amended by Act 215, Public Acts 1917; Lipp v. Jacobs, 164 N. W. 478, 198 Mich. 357;Raymond v. Bigley, 197 N. W. 532, 226 Mich. 182. The fact that plaintiff may not be entitled to all the relief prayed for in the bill does not preclude the court from granting such relief as the facts stated in the bill and sustained by the proofs justify, where, as in this case, there is a prayer for general relief. The suit was commenced when the summons was in good faith placed in the hands of the officer for service, or when given to plaintiff's attorney. Taylor v. Mathews, 194 N. W. 533, 224 Mich. 133, and authorities there cited. Good faith in the instant case is not questioned. That Mr. King was away on a hunting trip and could not be served until the 27th did not prevent the court from acquiring jurisdiction of the case on the day it was commenced, the 18th. Plaintiff made its case against the Wiltons under Act 215, Public Acts 1917. Defendants King insist they are not within the durview of that act, and as to them plaintiff should have been required to go further in its proof. But defendants King are not concerned in the issue between plaintiff and defendants Wilton. The interest in the land contract was subject to levy and sale under the statute and cases above cited, and on the same authority a bill in aid of execution was proper to set aside a fraudulent conveyance of that interest. This was the issue between plaintiff and the Wiltons. As to dfendants King, as we have before stated, the bill was a bill to redeem. Defendants King were entitled either to their money or the land. The Wiltons were not concerned with the issue as to the Kings nor the Kings that with the Wiltons.

The principal contention of defendant is this: The Kings recovered judgment before the commissioner August 21st; that judgment cannot be collaterally attacked; payment of the amount found due could be made within the next 30 days, then only to the commissioner; the tender into the circuit court in chancery of the amount did not save plaintiff's right to redeem; the suit was not commenced until process was served and this was after the 30 days had expired and defendants' title had matured. The last point is already answered by what has been said. When the suit was commenced and the money tendered into court, there was still time to redeem.

It is well settled that a court of equity will not try out issues tried or triable before the commissioner in summary proceedings cases in which that court has jurisdiction. Security Investment Co. v. Meister, 183 N. W. 183, 214 Mich. 337;Manuel v. Federal Commercial & Savings Bank, 199 N. W. 646, 227 Mich. 647;Blazewicz v. Weberski (Mich.) 208 N. W. 452, handed down herewith. But, in a summary proceeding before the commissioner, equitable defenses are not permissible. Bartlett v. Bartlett, 61 N. W. 500, 103 Mich. 293;Gale v. Eckhart, 65 N. W. 274, 107 Mich. 465;Cottrell v. Moran, 101 N. W. 561, 138 Mich. 410. The issues here involved are purely equitable issues,...