Summers v. Bromley

• Citation: 28 Mich. 125
• Court: Supreme Court of Michigan
• Decision Date: 14 October 1873
• Parties: James G. Summers v. Barton M. Bromley and others

28 Mich. 125

James G. Summers v. Barton M. Bromley and others

Supreme Court of Michigan

October 14, 1873

Heard July 17, 1873; July 18, 1873

Appeal in Chancery from Oakland Circuit.

Foreclosure. Defendant Emerson appealed. Decree modified.

Case remitted to the court to carry out the decree as modified.

Crofoot & Brewer and A. C. Baldwin, for complainant.

Charles & W. N. Draper and G. V. N. Lothrop, for defendants.

Graves J. Cooley and Campbell, JJ., Christiancy, Ch. J. concurred.

OPINION

Graves J.

This was an ordinary foreclosure cause on a mortgage made by defendant, Barton M. Bromley, to complainant's assignor and dated March 9th, 1868. The only statement in the bill connecting the other defendants with the subject of the suit, or in any way implicating them, is one made under general rule ninety-one of the rules in chancery, and is in these terms: "And your orator further shows unto this court that Joseph Emerson, William Burbank, Jefferson Jones, John Barr, and Olive Bromley, have or claim some interest in the said mortgaged premises, or in some part thereof, as purchasers, mortgagees or otherwise, which interests, if any, have accrued subsequent to the lien of the said mortgage, and are subject thereto." None of the defendants, except two of those brought in under this particular allegation, namely, Emerson, and Olive Bromley, made defense. They put in separate answers, but their answers exhibited the same ground of defense, and it was, that when the mortgage was given the defendant Olive was the absolute and exclusive owner of the premises, and that the defendant Emerson succeeded to her absolute and exclusive title, by conveyance from her. It is true that the validity of this position was made to depend upon the genuineness or want of genuineness of an instrument antedating the mortgage, and which was placed on record and purported to be a deed of the premises from the defendant Olive Bromley, to the mortgagor Barton M. Bromley. But the question of forgery connected with the alleged deed was merely something involved in the defense, and needed to maintain it. It was not the fundamental defense itself. The ultimate and substantial question was, in whom did the title reside. On the face of the papers it purported to reside in the mortgagor, Barton M. Bromley. The defense insisted that when the mortgagee was given, it resided in Olive Bromley, who transferred to Emerson, in whom it had since continued to reside, and therefore that neither the mortgagor nor mortgagee possessed any title. The very gist of the defense was, the assertion of a title both hostile and paramount to the claimed for the mortgagor and mortgagee. On this the controversy was made to hinge. The complainant filed the usual general replication, and the parties went at great length into proofs upon this disputed question of title, and the court below decreed foreclosure and sale in the ordinary form, and in terms provided for barring defendants, and for giving possession to the purchaser. The defendant Emerson, who claimed under Olive as owner of the adverse and superior title, alone appealed.

The case has been argued with great fullness and ability, and it is much to be regretted that the litigation cannot be now closed. But that is impossible. The circumstances of the case, and the settled rules of law, are so plainly opposed to such a result as to preclude all doubt. The difficulty is at least two fold, and it is fundamental as well as formal. The real question was strictly legal, and one proper for a court of law.--Welby v. Duke of Rutland, 6 Bro. Par. Cas., 575; Hipp v. Babin, 60 U.S. 271, 19 HOW 271.

In the first place, it is not competent in a foreclosure suit whatever the pleadings, to proceed to litigate and settle the right of a party who sets up a legal title which, if valid, is adverse and paramount to the title of both mortgagor and mortgagee.--Chamberlain v. Lyell, 3 Mich. 448; Wurcherer v. Hewitt, 10 Mich. 453; Banks v. Walker, 3 Barb. Ch., 438; Eagle Fire Co. v. Lent, 6 Paige 637; Holcomb v. Holcomb, 2 Barb. S. C., 20; Corning v. Smith, 2 Seld. 82; Lewis v. Smith, 11 Barb. 152, S. C., 5 Seld. 502. Our legislation respecting foreclosure proceedings does not countenance such litigation. The passage in the statute (Comp. L., § 5154), which declares that the commissioner's deed shall be an entire bar against each of the parties, must be construed with the preceding and other members of the section so as to harmonize therewith and with the general spirit of the law. It cannot rightly be held to mean that in case neither the mortgagor or mortgagee had any title, the commissioner's...