Casey v. Goetzen , 240 Mich. 41 ( 1927 )

The decree in the circuit eliminated defendant Goetzen. Defendant Samuel Shapero held a mortgage for $250, given by Francis J. Casey, on a lot in the township of Royal Oak, Oakland county. Casey sold the lot on land contract to Joseph Rytel. Shapero foreclosed the mortgage by advertisement, purchased at the sale and received a sheriff's deed, operative February 16, 1926. February 26, 1926, Shapero commenced a summary proceeding before a circuit court commissioner to obtain possession under the sheriff's deed. The complaint was against Casey and Rytel. Casey was not served with process, and, at the hearing, on motion of Shapero, the proceeding was dismissed as to him. Judgment was rendered against Rytel March 5, 1926. April 8, 1926, before possession was obtained by Shapero, Casey and Rytel filed the bill herein to vacate the judgment of the commissioner on the ground that the attempted foreclosure was a nullity. Defendant Shapero appeared, and by answer in the nature of a cross-bill, asked that his title under the foreclosure be held valid. A decree was entered holding the foreclosure void, canceling the sheriff's deed, and restraining Shapero from enforcing the judgment of the commissioner. Shapero appealed, claiming the commissioner's judgment barred this suit; relying on the decision inManuel v. Savings Bank, 227 Mich. 647.

The statute (3 Comp. Laws 1915, § 14951) requires notice of sale, under a mortgage, by advertisement to be published in a newspaper, once in each week for 12 successive weeks. From the time of the first insertion of notice of sale to the date of sale was but 78 days. Twelve successive weeks takes at the least 84 days from the time of the first insertion of the notice. A foreclosure by advertisement admits of no sale until the expiration of 12 full weeks after the first publication. Bacon v. Kennedy, 56 Mich. 329 . The sale was void and the sheriff's deed a nullity. Rytel was but a vendee in possession under an executory contract, with a contingent equitable interest. Jackson v. West,224 Mich. 578. Rytel could not surrender any rights of Casey, his vendor, even had he wanted to do so; neither was he required to litigate the validity of the foreclosure. The judgment against Rytel decided no rights of Casey. Casey held the legal title, and, as we have pointed out, the attempted foreclosure did not cut off such title. Casey had a right to file the bill herein, and the joining of Rytel with him does not defeat right to relief.

The holding in the Manuel Case is clearly no authority applicable to this case. There the mortgagor was served with process, appeared before the commissioner, had his day in court on the question of the validity of the mortgage foreclosure, failed to avail himself of the opportunity to show invalidity of the foreclosure, and judgment was rendered against him. The rule of former adjudication was properly applied under such circumstances, but in the case at bar there was no process served on Casey, Shapero dismissed the suit as to him, and there was no adjudication in a proceeding in which Casey was a party.

The decree is affirmed, with costs against defendant Shapero.

SHARPE, C.J., and BIRD, SNOW, STEERE, FELLOWS, CLARK, and McDONALD, JJ., concurred.