Snyder v. Hemingway

• Citation: 47 Mich. 549,11 N.W. 381
• Court: Supreme Court of Michigan
• Decision Date: 25 January 1882
• Parties: SNYDER v. HEMINGWAY and others.

11 N.W. 381

47 Mich. 549

SNYDER v. HEMINGWAY and others.

Supreme Court of Michigan

January 25, 1882

A judgment in ejectment rests upon the title existing at the commencement of the suit, and proceedings are not affected by conveyances subsequently made by the plaintiff. A defendant in ejectment is not estopped from purchasing a title derived from the plaintiff, or holding it as any one else would hold it. Where a mortgage is shown, and a sale apparently in accordance with its terms, a presumption is raised that will protect a purchaser whose rights are not assailed by some proper steps. Notice of sale on foreclosure need not designate the precise parcels intended to be sold; "the premises, or so much thereof as is necessary," is sufficient. Sale may be by either the mortgagee or sheriff. Affidavit of publication reciting that the newspaper in which the same was published was printed and published weekly and every week; that the publication was for 13 successive weeks the first being November 26, 1879, and the last February 18 1880,--is sufficient. Affidavits may be taken before an attorney of the mortgagee.

Error to Berrien.

Edward Bacon, for plaintiff in error.

Clapp & Fyfe, for defendants in error.

CAMPBELL J.

Snyder brought ejectment for 120 acres of land, consisting of two adjacent government subdivisions of 80 and 40 acres respectively, and occupied severally by defendants in parcels. On the trial he made out his title by showing conveyances to himself and predecessor of the government title in 1839 and 1855. He then showed that defendants had taken deeds from one Jesse Hemingway in 1872 and 1876, and a conveyance made in February, 1859, from one Finnegan to Jesse Hemingway. He then proved a judgment in ejectment rendered in plaintiff's favor against Jesse Hemingway in November, 1865, upon a suit begun January 17 1859, declaring plaintiff to be entitled in fee. He also proved a writ of possession issued on this judgment ex parte, in July, 1878, with a return by the sheriff that he had put plaintiff in possession by force, and a six months' lease obtained on this occasion to be accepted by William R. Hemingway of the 80 acres. The present suit was brought in April, 1880, after notice to quit.

The defendants proved title under the foreclosure of a mortgage given by plaintiff on the sixth of August, 1859, to one George Kimmel, which was foreclosed by sale February 25 1860, and the 80 and 40 acre lots sold separately to Jesse Hemingway. Plaintiff claims as to these matters--First, that the judgment and proceedings under it in the old ejectment suit estop defendants as claimants under Jesse Hemingway; and, second, that the foreclosure proceedings are not valid. Upon the first point was decided in Mich. Cent. R. v. McNaughton, 45 Mich. ----, [S.C. 7 N.W. 712,] that a judgment in ejectment rests upon the title existing at the commencement of suit, and that the proceedings are not affected by conveyances subsequently made by the plaintiff. If he prevails it may therefore enure to the benefit of his grantee. It would be very strange if a plaintiff in ejectment could set up his...