Reading v. Waterman

• Decision Date: 27 April 1881
• Citation: 46 Mich. 107,8 N.W. 691
• Court: Michigan Supreme Court
• Parties: READING v. WATERMAN.

8 N.W. 691

46 Mich. 107

READING v. WATERMAN.

Supreme Court of Michigan

April 27, 1881

Notice of a statutory foreclosure must in all things required by statute conform to the statutory provisions. But when it contains all that the law requires, it will not be void for error in other respects which are not misleading. Lee v Clary, 38 Mich. 223, affirmed. A notice which identifies a mortgage by date and parties, and accurately describes the time and place of its record, is not rendered invalid by calling a name Dixon which should be Dickson, nor by having the date of the mortgage given once correctly and once incorrectly, inasmuch as it furnishes the means of its own conclusion. Neither is a notice if published for the proper time and giving the proper time and place of sale invalidated by an error of date. A mortgagee cannot take or hold possession before foreclosure, without the consent of the mortgagor or his assigns. But where he is deliberately and intentionally put in possession by the mortgagor, his possession is rightful, and ejectment cannot be brought against him without some action previously taken which will terminate his right and render his continuance in occupancy wrongful. A sheriff's deed on foreclosure, is not made invalid by an error in setting forth the date of a mortgage which is so described otherwise as to be clearly identified. The statute does not prescribe the form of such a deed. The statute itself fixes the time of redemption on foreclosure and a certificate which fixes an impossible time will not destroy the validity of the foreclosure.

Error to Berrien.

Champlin & More, for plaintiff in error.

David Bacon, for defendant in error.

CAMPBELL J.

Waterman in August, 1868, began an action of ejectment against Reading, who was in possession as purchaser under mesne conveyances from Anna H. Dickson, of lot 27 in William Justice's plat of Niles, to recover that lot, on which Reading had begun and nearly completed very expensive improvements. It appears from the record that Waterman, in May, 1849, bought this land of Anna H. Dickson, and gave back a purchase-money mortgage. On the eighteenth of December, 1852, she began to publish notice of a statutory foreclosure, the sale being fixed for March 15, 1853, on which day she bid off the premises, and the deed was in a few days put on file with the register of deeds. The land was never redeemed, and Waterman remained in possession until May 15, 1855, when he surrendered possession to Mrs. Dickson, who subsequently sold to the party through whom Reading derived his title.

The ejectment suit was allowed to sleep until 1878, when it was brought to trial, and Waterman prevailed in the Berrien circuit on the ground that the foreclosure was irregular. He proved no notice to quit, and prevailed on the supposed defect of the foreclosure. He never redeemed, and never offered to redeem. While it is the settled law of this state that a mortgagee has no right to take possession until foreclosure absolute, as decided in Newton v. McKay, 30 Mich. 380, and Lee v. Clary, 38 Mich. 223, as well as some other cases which have been before us, yet it was intimated in Newton v. McKay, that where a mortgagor voluntarily puts a mortgagee in possession, he may thereby preclude himself from relying on grounds otherwise open to him. We think it would be entirely wrong to allow a mortgagor, who has deliberately and intentionally yielded up possession to a claimant whose rights, if any, are derived from his own contract, to treat the possession as tortious and bring ejectment without either notice or payment. We have no doubt that Mrs. Dickson and her grantees were lawfully in possession, whether the foreclosure was regular or not, and that they could not be ousted by ejectment.

But inasmuch as the controversy hereafter may present some new features, we are obliged to consider the questions raised under the foreclosure itself. These questions arise touching the notice of sale, and the sheriff's deed. The sheriff's deed is said to be defective in two respects. It gives a wrong date to the mortgage, and the certificate indorsed upon it declares the deed if not redeemed will become effectual on the fifteenth day of March, 1844, when it should have been 1854. The sheriff's deed described the mortgage correctly in all but its date, which was put as May 8, 1848, when it should have been 1849. The names of the parties and the date and volume and page of record were properly set forth, as well as the day and place of sale, and the amount of...