Ward v. Obenauer

• Citation: 77 N.W. 305,119 Mich. 17
• Court: Supreme Court of Michigan
• Decision Date: 13 December 1898
• Parties: WARD v. OBENAUER ET AL.

77 N.W. 305

119 Mich. 17

WARD v. OBENAUER ET AL.

Supreme Court of Michigan

December 13, 1898

Appeal from circuit court, Wayne county, in chancery; Joseph W. Donovan, Judge.

Petition by John Ward against Frederick P. Obenauer and others for execution for deficiency on foreclosure of land contract. From an order granting the prayer of the petition, defendant Mary Brownell appeals. Affirmed.

Bayard T. Brown, for appellant.

John Ward, in pro. per.

HOOKER, J.

On May 14, 1891, Charles R. Brownell and Mary Brownell, his wife, made a land contract in writing, with Obenauer, whereof they agreed to sell premises therein described, upon terms thereby stated. On the 1st of the following June, the Brownells assigned their title to the land contract to Ward. This writing contained an undertaking that there was $362.50 unpaid upon the contract, and that, if not paid at maturity, they would be holden for and pay the same. Ward foreclosed the contract in chancery. The Brownells were parties, and Mrs. Brownell answered, disclaiming any interest in the lot or contract, and denying her personal liability. The decree shows that the cause was heard upon testimony taken in open court, and it contains an adjudication that Mary Brownell was personally liable for a possible deficiency. The deficiency being reported by the commissioner, Ward filed a petition for execution. Mary Brownell answered, setting up the same defense as that contained in her former answer, and appeals from an order granting the prayer of the petition. We are of the opinion that the question was adjudicated on the hearing of the foreclosure case, and that such adjudication is conclusive upon her, under the authority of Jehle v. Brooks, 70 N.W. 440, 112 Mich. 131. The order of the learned circuit judge is affirmed, with costs. The other justices concurred.