Sheldon v. Warner's Estate
| Decision Date | 03 February 1886 |
| Citation | 26 N.W. 667,59 Mich. 444 |
| Parties | SHELDON v. WARNER'S ESTATE. |
| Court | Michigan Supreme Court |
Error to Chippewa.
Chandler, Grant & Gray, for plaintiffs and appellants.
George W. Brown and Brennan & Donnelly, for defendant.
Plaintiffs having established a claim against the estate of Ebenezer Warner, before the commissioners, it was rejected on appeal before the circuit court for Chippewa county, and that decision comes before us on error. The claim is for a balance remaining due after a sale under a mortgage decree. The foreclosure suit was brought upon a mortgage given by Warner to Ransom Sheldon and Columbus C. Douglass, who were his bondsmen as receiver of the United States land-office. The mortgage was conditioned that Warner should "pay, or cause to be paid, all such sums of money, dues or demands for which said party of the second part are holden and liable to and for the said party of the first part, by being security for said party of the first part upon an official bond as receiver of the United States land-office at Marquette, in this state, and shall save and keep harmless the said Douglass and Sheldon from all costs, expenses charges, or loss arising therefrom, then these presents," etc., "shall cease," etc. This bond was executed by then these presents, Warner and by his sureties. He made default, and Douglass and Sheldon, having been compelled by suit in favor of the United States to pay his deficit, filed their bill to foreclose. Warner and his grantees of the mortgaged premises were made defendants. He was served personally and defaulted, and the usual decree was made against him. A decree with personal clause was made against him, which seems to have been after his death, but a dismissal was had as to the other defendants. On appeal to this court the decree dismissing the bill as to them was reversed, and a decree ordered against them. In August, 1881 the case was revived against Warner's estate, and a decree in the usual form was consented to by the administrator, and a sale had, and surplus found remaining due after sale, which is the claim now in controversy. The decree, which declared that for any deficiency the estate should be liable in the due course of administration, was never appealed from by any one.
The circuit judge seems to have held that the claim of plaintiffs rested on the personal clause in the decree, and that this clause was void for want of jurisdiction; and this want of jurisdiction seems to be based on the want of any personal obligation accompanying the mortgage, in the absence of which he holds that the action of the administrator could not bind the estate for any deficiency. In my opinion, the circuit judge acted in entire misapprehension of the statutes. It is very true that where a mortgage is the only claim existing, a covenant to pay is not implied; but if a mortgage is collateral to any actual personal obligation which could be enforced at law, no matter in what shape that obligation exists, it may be enforced in the foreclosure proceedings. The express purpose of the statute is to save the necessity of suing at law for any part of the same debt. By section 6702 of Howell's Statutes it is declared that the court shall have power to make a personal decree for "any balance of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises in the cases in which such balance is recoverable at law." It is only where a personal decree is sought against sureties or other persons besides the mortgagor that a decree against such third persons must be based on some written obligation. Section 6704. There is no such condition as to the mortgagor himself. It would make no difference, however, in this case, because the mortgage here is to secure the payment of Warner's obligation under the bond, as well as to indemnify his sureties, and his liability is under the bond itself, which is his personal obligation to them as well as to the government, and they could sue on the bond for all that they were obliged to pay for him. But that he was liable at law for the obligation secured by the mortgage there can be no possible doubt.
If Warner, had he lived, would have been liable to a personal decree, then there can be no doubt that his estate is liable for this deficiency. The bill was filed to enforce the personal obligation, as well as the security on the land. The decree of sale could not be made until the amount of the debt was determined. That determination must fix the amount of the debt, until reduced by the sale, and must stand as a judgment of the sum due, subject to such reduction. Haldane v. Sweet, 25 N.W. 383. Warner's default made him, if he had lived, subject to a decree both personal and for foreclosure. Under the statutes, both at law and in equity, the personal representative is the only person to be brought in as interested in a personal claim against the estate, and there is no rule which requires him to defend against a just claim, even if he could defend a claim that has already been taken as confessed against his decedent. The statute (section 6659) expressly provides that if the original defendant has not answered, the court may order a decree pro confesso, or may compel an answer by attachment. But where an answer under oath is waived, as here, a pro confesso is the only decree in the absence of an answer. The same rule applies at law, and if the representative makes default, a personal judgment is rendered against the estate, and is evidence of a debt established, to be paid in due course of administration. Section 7396. It is not true, therefore, that an administrator is bound to defend, or cannot bind the estate by consenting to judgment when the suit is already pending in a court of justice.
I can see no reason why this claim should be rejected, and think judgment should go for plaintiffs.
The plaintiffs presented the following claim against the estate of Ebenezer Warner, deceased, before the commissioners, to examine, audit, and allow claims against said estate, which claim the said commissioners allowed at the sum of $12,793.59:
The administrator refusing to appeal, the heirs of said Warner under the statute in such case made and provided, appealed to the circuit court for the county of Chippewa. On the trial in the circuit court the judge made a written finding, and disallowed and dismissed said claim. The plaintiffs allege error, and ask that the claim be allowed, and the finding of the commissioners sustained. It appears from the findings of the circuit judge that plaintiffs rely solely and entirely upon proceedings in a chancery suit commenced in August, 1876, in Chippewa county, wherein ...
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