Griffin v. Johnson

Campbell, J.

Plaintiffs brought ejectment as heirs at; law of Stephen W. Griffin to recover lands sold to defendant Yost under a mortgage executed by the administrator-of their father’s estate, by virtue of a license from the-court of probate of Washtenaw county. The license was-, granted January 29, 1872, and the mortgage dated February.-1, 1872, and acknowledged March 14, for $3,000, payable-October 15, 1874, with annual interest on the 15th of October in each year at the rate of ten per cent. The widow-joined in the mortgage. Default having been made-, the-mortgage was foreclosed under the statute, March 31, 1875, subject to the statutory redemption. On the 28th of October, 1875, an order was made by the judge of probate confirming the mortgage. After the redemption expired, the purchaser, Yost, went into possession. This action was, brought not long afterwards.

The validity of the mortgage is attacked for reasons; lying back of the license, consisting of various facts claimed; to show there was no legal occasion for the sale to pay-debts, and no actual deficiency of assets. Further grounds, set up were, that the property was a homestead, that an. oath and bond were not taken and filed in season, that the terms of the mortgage varied from the license in regard to the time of the first interest payment, and an attorney’s fee of $50, and that the mortgage was not seasonably confirmed.

*91 The petition set forth that the personal property was exhausted except a corn sheller worth $8; that the just debts which deceased owed and which were then due, including two mortgages specified, amounted to about $3,000, and that the costs and charges of administration would be about $150. On these showings leave was asked to mortgage all or a part of the land described, being an eighty-acre farm which was the homestead of deceased, worth $4,000, and two small lots worth $240. The license authorized the whole to be mortgaged for $3,000,' payable on or before October 15, 1874, with interest annually at ten per cent.; and required a bond of $6,000, and the oath required by statute. The bond was filed February 22, and approved February 27, 1872.

The allegations in the petition set up a sufficient state of facts, if true, to authorize the granting of a license. This being so, the truth or falsehood of those allegations cannot be inquired into collaterally. The court having jurisdiction, parties claiming under a mortgage made in pursuance of a license are not required to investigate the truth of those facts, but have a right to assume the court acted correctly. This doctrine has been settled by a long series of decisions of this court. Palmer v. Oakley, 2 Doug., 433 ; Howard v. Moore, 2 Mich., 226 ; Coon v. Fry, 6 Mich. 506 ; Woods v. Monroe, 17 Mich., 238 ; Osman v. Traphagen, 23 Mich. 80 .

The statute does not require an oath, for the simple, reason, probably, that, as the amount and rate and terms, of the mortgage are fixed by the license, it is of no importance from whom the money is borrowed; while in case of.' a sale of lands there is much room for discretion in fixing the sale in such way as to be most public and probably productive. A bond is required to protect the estate against, the misappropriation of the money received on the mortgage. This bond was given before the acknowledgment of the mortgage, and was approved by the court. This is all. that the statute contemplates.

We think it was no departure from the terms of the. license to make the first installment of interest payable. *92 October 15, 1872. As that was the day when the other payments were to accrue, and as annual interest could not be ¡paid literally in annual instalments, but must fall within ■a shorter period first or last, the time was properly fixed.

So far as inserting an attorney’s fee in the mortgage is (Concerned, it could not invalidate the mortgage, and could ■only give rise to a claim for a reduction of the amount 'due upon it, even if we should regard it as unauthorized. It is not a question that can be raised in this action.

The homestead question is not presented by this record, as .there is no finding of such facts as would show the homestead right to have existed. The widow appears to have joined fin the mortgage, and the record does not find the fact that ithere were minor children whose claims would be entitled to protection. None but minors would be entitled to protection when the mortgage was made. We cannot act upon .evidence where there is no finding.

This objection would not affect the remainder of the land which exceeded in amount and value the statutory •homestead (Wallace v. Harris, 32 Mich., 380 ; Hanchett v. McQueen, 32 Mich., 22 ); and in the present condition of the case, the question cannot be discussed.

How far the absence of a previous confirmation might .affect the case if there had been any thing left to the dis'■cretion of .the administrator, we need not determine. In the case of a mortgage the whole of its terms are fixed by the license, and it cannot be of any consequence whether the money is borrowed of one person or another. A con■firmation in such a case is not necessary to prevent such risks as may arise out of a sale for an inadequate consider.ation, and is not of any importance by way of protection. There is no reason, therefore, why it may not be made /nunc fro tunc. The statute does not make the mortgage void without it, and we think the confirmation made was walid. It cannot be supposed it was intended to make such •instruments void for mere irregularities. These have been held, in the cases before cited, to have no such effect; and .a proceeding which cannot affect the substantial rights of parties is no more than irregular.

*93 We find no error in the record, and the judgment must, be affirmed, with costs, and the case remanded to the court below for such further proceedings as may be legally authorized in actions of ejectment.

Marston and Grates, JJ., concurred. Cooley, C. J.

I agree with my brethren in this caseexeept as to what is said regarding the homestead right. I am of opinion that the record before us sufficiently presents-the rights of the plaintiffs in that regard.