Hillsdale County MI Archives Court.....Atwater, V. Kinman 1837 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/mi/mifiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 7:37 am Source: Cases In Chancery Written: 1837 CASES IN CHANCERY SECOND CIRCUIT. Clinton E. Atwater and others v. James K. Kinman and others. Oath to bill. Where no preliminary order is required it is not necessary that bills should be sworn to, although the answer under oath is not waived. Irregular foreclosure, waiver of. Where, in a foreclosure of a mortgage, by advertisement under the statute, a mistake occurs, which renders the proceedings irregular and voidable, the mortgagee has a right to waive those proceedings, and commence de novo, either by advertisement under the statute, or by availing himself of the right he had in the first instance to seek his remedy in this court. This was a bill to foreclose a mortgage given by Carl Brockhousen and wife to Clinton E. Atwater and Henry A. Delavan, the complainants, to secure the payment of four hundred dollars. The bill is in the usual form for a foreclosure, and does not waive the necessity of the defendants answering on oath. It further states that, from the examination of the records, it appears that James K. Kinman had purchased the said mortgaged premises for the sum of twelve hundred dollars, and received a deed for the same, about March 28, 1839, which deed was on record. The bill further states that complainants had foreclosed their mortgage by advertisement under the statute, and that the mortgaged premises were sold under such advertisement, April 9, 1839, at the court house in the county of Hillsdale, where the mortgaged premises were situated, by the sheriff of said county, and bid in by Salem T. King, agent and attorney for complainants, for the sum of four hundred and forty-seven dollars and sixty-three cents; that the usual certificate, affidavits of publication, etc., were duly recorded. That complainants had subsequently ascertained that the sale was irregular, inasmuch as both lots were sold together, instead of being sold separately, pursuant to the provisions of the statute. The bill further states that Kinman had declared the sale to be irregular, and that complainants would be compelled to foreclose again, and that he had given complainants to understand that he should disregard the sale entirely, and that complainants are apprehensive that if the sale should be considered voidable only, and liable to be made good by the acquiescence of the parties, yet, that the defendants would refuse to redeem the said premises, and that they would contest any proceedings at law to obtain possession of said premises. The defendants demur. Lee and Pratt, in support of the demurrer. 1. Complainants' bill is not sworn to by complainants, their agent, attorney, or solicitor, nor the answer of the defendants on oath waived; the demurrer, therefore, is well taken. (Lansing v. Pine, 4 Paige, 639.) 2. If the bill filed was verified by the oath of complainants or any other person, the defendants were not bound to look beyond the copy of the bill served on their solicitor. (Lansing v. Pine, 4 Paige, 639.) 3. In the first place, the complainants had their election to foreclose their mortgage at law or in equity, and, having made their election and foreclosed at law, sold and bid in the premises, they cannot now foreclose again in this court. 4. The complainants have not made such a case, upon the face of their bill, as entitles them to any relief in this court. The complainants do not ask to have the foreclosure at law set aside at their own expense; nor does it appear that the complainants have ever asked the defendants to waive, or in any way release, any error in the proceeding at law. Nor does it appear but that the defendants would have been willing, at any time, to have released any error if desired or requested. Nor does it appear but that the defendants intend, in good faith, to pay up the mortgage and redeem the premises before the time for the redemption expires. 5. If there was an error in the proceeding to foreclose at law it does not render the forclosure void; at most the proceedings are only voidable ; and, therefore, until the defendants take some steps to avoid the validity of the foreclosure and sale, the complainants cannot, in equity, ask permission of this court to avoid their own proceedings. A foreclosure at law is in the nature, of a judicial proceeding. A bona fida purchaser under a judicial or other sale at law is always protected where there is jurisdiction. And this question is fully settled in the case of the American Insurance Co. v. Fisk, 1 Paige, 90; and in which case the bill was dismissed by the chancellor on that ground. George C. Gibbs, for complainants. The Chancellor.—Where no preliminary order is required it is not necessary that the bill should be sworn to, although the answer under oath is not waived. This is not required by the English practice, or by the rules of this court, as they now stand. As to the other point raised by the demurrer, it is alleged that, in the proceedings to foreclose under the statutes by advertisement, a mistake occurred which renders the proceedings irregular and voidable. It would certainly be in the power of the mortgagee to waive those proceedings and commence de novo under the statute. And this being undoubtedly competent, I can see no reason why he may not avail himself of the right he had in the first instance, and seek his remedy in this court. If he seeks his remedy here he, of course, waives the proceeding under the statute, and all claim for costs under that proceeding. I can see no reason for the argument that, by first proceeding under the statute, which proceeding, by mistake or accident, is inoperative or void, the party has made his election and cannot have relief here. The demurrer must be overruled with costs. Additional Comments: CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN BY ELON FARNSWORTH, Chancellor File at: http://files.usgwarchives.net/mi/hillsdale/court/atwater50gwl.txt This file has been created by a form at http://www.genrecords.org/mifiles/ File size: 6.5 Kb