Richards v. Morton

• Decision Date: 27 April 1869
• Citation: 18 Mich. 255
• Court: Michigan Supreme Court
• Parties: Edward C. Richards et al. v. Eurotus Morton

18 Mich. 255

Edward C. Richards et al. v. Eurotus Morton

Supreme Court of Michigan

April 27, 1869

Heard April 22, 1869 [Syllabus Material] [Syllabus Material]

Appeal in chancery from Wayne circuit.

The bill in this case is filed to foreclose two mortgages, given respectively by Amariah Rawson and William E. Warner to George W. Gilbert.

To the foreclosure of the latter mortgage, defendant Morton offered no defense; but he claimed a right to the property covered by the Rawson mortgage, superior to that of the complainants.

The mortgage under which the defendant claimed was given to Simeon A. Dunn, and was dated July 1, 1841, and was recorded July 2, 1841.

The mortgage under which the complainants claim was dated October 29, 1847. Dunn assigned his mortgage to Newton Edmunds, who on the 14th of February, 1846, filed a bill in the old court of chancery, second circuit, to foreclose it. Subpoena was issued and served, answer and replication filed more than a year prior to the execution of the mortgage by Rawson to Gilbert, under which the complainant claims.

The cause was commenced and carried to a decree in the old court of chancery for the second circuit. By the law of 1847 abolishing the office of chancellor, the old court was retained and the jurisdiction devolved upon the justices of the Supreme Court for the purpose of disposing of the business commenced in said court as theretofore constituted.

The class of cases to which this belongs remained under the jurisdiction of said Supreme Court judge until January 1, 1852, the land being in another county, Wayne, than that where the old court was held (Washtenaw county).

The new courts of chancery, as created by said law, were designated "The circuit court for the county of in chancery."

The defendant contended that the property was regularly sold under the decree to Edmunds, who afterwards conveyed it to him.

On the hearing, it appeared that the proceedings in the suit, which were very imperfect, showed, amongst other things, the following:

The notice of sale was as follows: "Notice is hereby given, that, by virtue of a decretal order made by the circuit court for the county of Washtenaw, state of Michigan, in chancery, bearing date the 27th day of December, A. D. 1849, in a certain case pending in said court."

The master's deed recited that, "Whereas, at a session of the circuit court for the county of Washtenaw, state of Michigan, in chancery, held on the 27th day of December, A. D. 1849, it was, among other things, ordered adjudged and decreed by said court, in a certain case then depending in said court." "And whereas, I, the said Levi Bishop, master in chancery, * * * in pursuance of said order and decree of said court, did" sell, "having first given six weeks' previous notice of the time and place of such sale," "agreeably to said order." "Now, therefore, * * * in order to carry into effect the said sale so made."

The master's report on sale was as follows: "State of Michigan, circuit court for the county of Washtenaw, in chancery.

"Newton Edmunds, complainant, v. Amariah Rawson, defendant.

"To said court: 'In pursuance of a decretal order of said court, made in said cause, I, the subscriber,' * * 'by virtue of and pursuant to said order and decree, do hereby report.'"

From the journal entry of the circuit court for the county of Washtenaw, in chancery, it appears that the following order was made by Judge Johnson, on the 29th of September, 1853:

"Newton Edmunds v. Amariah Rawson.

"Upon reading and filing the affidavit of Amos C. Blodget, whereby it appears that the defendant, Amariah Rawson, who is in possession of the lands and premises mentioned and described in the bill of complaint and deed in this cause, was served with a certified copy of the order confirming the master's report upon a sale of the premises in this cause, and that at the same time the master's deed for said premises was produced and shown to him, and that he was then required to deliver possession of the said premises, which he refused to do. Upon motion of C. Joslin, solicitor for complainant, it is ordered that a writ of assistance be awarded against the said Amariah Rawson to the sheriff of the county of Wayne, thereby commanding him to put the said purchaser in possession of the said premises described in the said deed, and him in the possession thereof from time to time maintain and defend."

On the hearing, the bill was dismissed without prejudice.

Decree of the court below dismissing the bill as against the defendant Morton reversed, with costs, and the case remanded.

E. W. Morgan and G. V. N. Lothrop, for complainant and appellant.

H. K. Clarke, for defendant and appellee.

OPINION

Graves J.:

The original bill in this case was filed on the sixth day of January, 1855, to foreclose two mortgages executed on the 29th of October, 1847, one by Amariah Rawson, the other by William E. Warner to George W. Gilbert, and such bill was followed by a supplemental one, filed by the complainants on the 14th of September, 1863.

Morton answered, but all the other defendants suffered the bills to be taken as confessed, and, on the hearing, they were dismissed as to him, and the complainants appealed to this court.

The defense interposed by Morton relates exclusively to the Rawson mortgage, and the property covered by it, which property he claims to have acquired by purchase of Newton Edmunds, whom he alleges to have been the vendee of the same on foreclosure and sale, upon a mortgage given on the same premises by Rawson to one Simeon A. Dunn several years before the execution of the mortgage to Gilbert, namely, July 1st, 1841.

It is maintained, on the part of Morton, that the foreclosure proceedings on the Dunn mortgage were commenced on the 14th of February, 1846, in the court of chancery, as then constituted; that a decree of sale was made in 1849, and that the property was sold to Edmunds, pursuant thereto, on the 15th of May, 1850.

It is seen, therefore, that the position of Morton amounts to an assertion of an adverse and paramount title, derived through the foreclosure proceedings on the prior mortgage given to Dunn.

The material question in the case is whether, by the proceedings so carried on by Newton Edmunds, he obtained the legal title and barred the equity of redemption as against those setting up the mortgage in suit.

The decision of this question requires us to determine whether certain proceedings essential to the completion of the foreclosure, and the validity of a title depending thereupon, have been shown to have taken place. Upon this point the parties are at issue, it being maintained by the complainants that several of the most essential things for the foreclosure relied on are in no manner shown to have been done, while it is urged in behalf of Morton that it sufficiently appears that all requisite proceedings were had, and that certain discrepancies pointed out by the complainants as to the description of the tribunal in different instances in the papers and proceedings produced in evidence, are merely verbal, and such as ought not to prejudice Morton's right.

By the act which took effect February 27, 1847 (Sess. L. 1847, p. 33), the office of chancellor was abolished, but the court was retained, and the jurisdiction devolved upon the justices of the Supreme Court, for the purpose of disposing of all the business commenced in the court as theretofore constituted. This act also continued the registers of the court in office, and authorized the justices of the Supreme Court to fill vacancies by appointment. By the Revised Statutes, which took effect on the first of March, 1847, jurisdiction as to all new business was given to the circuit courts in chancery for the several counties.

It is seen that this law of February 27th provided a particular tribunal for the winding up of the business pending...