Vaughan v. Black
| Decision Date | 14 October 1886 |
| Citation | 63 Mich. 215,29 N.W. 523 |
| Court | Michigan Supreme Court |
| Parties | VAUGHAN v. BLACK and others. |
Appeal from Eaton. In chancery.
H.S. Maynard, for complainant.
Peter Doran, for appellants Ball and Walters.
In the fall of 1883 the original bill in this case was filed against Black and wife, as mortgagors, and Ball and Walters as subsequent purchasers. A decree of foreclosure was made which not only ordered a sale of the land and personal liability against Black, but also proceeded to decree a similar liability against Ball and Walters, who were claimed in the bill to have become personally liable by reason of a letter claimed to have been written by them in the following language:
The note secured by the mortgage was for $500, with interest at 10 per cent., payable October 6, 1882, "with the privilege of extending the time of payment of said principal to October 6, 1884; interest payable annually, at ten per cent., according to a mortgage bearing even date." Under the mortgage the right to make the principal as well as interest payable could only have been after 30 days' default, which had not expired when the latter was written.
A subpoena was served, of which the underwriting left in blank the names of the defendants against whom a personal decree was to be sought, and containing the usual conclusion applicable where no such decree is sought, "and the bill is filed to reach interests in property, and not to obtain further relief against the remainder of the defendants." When the decree was obtained it was on default, and the proof of service went no further than the original subpoena. It makes no reference to the underwriting as being served, and the petition for a rehearing shows that the underwriting upon the copy bore no signature. This might have been important, if the case were not otherwise defective.
A sale was made, resulting in a deficiency. In January, 1885, a hearing was had on a petition for execution for deficiency, and a decree was ordered accordingly on the nineteenth of January, 1885. A petition for rehearing was made within the time for appealing, and denied on argument. It is objected, as a preliminary objection, that this application is too late. As the rule leaves this matter open to discussion, we do not think the objection should prevail where gross injustice would follow. But the complainant is mistaken in this regard. It has been settled by repeated decisions of this court that it is not within the power of courts of chancery to grant absolute personal decrees against parties claimed to be collaterally liable for the mortgage debt in the original decree, and, if done, the decree is so far nugatory. The remedy is purely statutory, and cannot be invoked until after a balance is reported unsatisfied. The proceeding, then, is substantially a new one, equivalent to the legal process of fieri facias. It cannot be sought against persons not properly charged in the bill, and it cannot be adjudicated except upon the occasion of a deficiency reported. Parties so charged have every defense open to them. They are not called on to defend until cited. It is singular that so little attention has been paid to our reported decisions. See Howe v. Lemon, 37 Mich. 164; Mickle v. Maxfield, 42 Mich....
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