Bigelow v. Booth

Maeston, J.

This was a bill filed to redeem from a sale on a mortgage foreclosure of certain real estate.

Complainant’s claim of title is under an execution sale of the mortgaged premises upon a judgment rendered against the grantee of the mortgagor in justice’s court, and a transcript thereof filed in the circuit, upon which execution issued and the premises were sold.

It is claimed that the transcript of the judgment as filed in the circuit was fatally defective, and that the sale made under the execution ^?as irregular and void.

Admitting that the affidavit made and filed with the justice April 4th, 1876, under 2 Comp. L., § 5382, was' entirely regular, but which is disputed, there still remain two fatal defects to be noticed. The transcript of the justice filed with the clerk was not signed by the justice at all. His name appears in the body of the certificate, but that is not sufficient. Whether it was written there by the justice or by some other person does not appear. .It should have been signed officially by him,in the usual ■ manner. Marston v. Brashaw, 18 Mich., 81 . The statute (§ 5383) makes it the duty of the clerk of the circuit court to file such transcript, and to enter and docket the judgment, on the plaintiff, his agent or attorney, making and filing an affidavit stating the amount due upon such judgment.

No such affidavit was made or filed. The affidavit made and filed with the justice under § 5382 would not take the place of the affidavit required by § 5383. The one filed with the justice was made and sworn to April 4th, while the transcript was filed with the clerk of the circuit court April 12th. Here was ample time in which the judgment might have been paid in whole or in part. It does not necessarily follow that the amount sworn to as due on the 4th of April remained due and unpaid on the 12th of the same month. Irrespective of this however the statute clearly contemplates that a sec *625 ond affidavit shall be made, and that it shall be filed with the clerk. And it is only upon this affidavit being filed, that the clerk is authorized to file the transcript and enter and docket the justice’s judgment. The affidavit is jurisdictional; the want of it is not a mere irregularity, — it goes to the foundation of the whole proceedings, and in the absence thereof no valid sale could be made. It follovfs therefore that complainants acquh ed no right or interest in the premises in question under the execution sale, and as complainants do not jointly claim under or from any other source it follows that they are not entitled to the relief sought, whatever one of them, standing alone, might be entitled to claiming title from another source.

Ordinarily we might go no farther, but an examination of the record fails to show any fatal defect or irregularity in the foreclosure proceedings. This case was pending in the Wayne circuit at the time the Superior Court Act took effect, and the transfer of such cases was clearly provided for and authorized by that act.

Whatever the effect of the assignment of the note and mortgage by the mortgagee and complainant, after he had commenced proceedings for the foreclosure of his mortgage, might have been if brought to the attention of the court, it is sufficient to say that until known they could have no effect whatever. Although known to the parties, yet the assignment did not appear of record, and was not brought to the knowledge of the court. The ease proceeded regularly to a decree, sale and confirmation of the same, and the effect of such assignment is sought to be used in this ease for the first time. It cannot be so used. The decree made and sale thereunder were valid and cannot thus collaterally be attacked. Were it otherwise, rights acquired by parties under judicial sales could never be safe from attack.

The decree must be reversed and the bill dismissed with costs.

The other Justices concurred.