Taylor v. Gladwin , 1879 Mich. LEXIS 530 ( 1879 )

Campbell, C. J.

Mrs. Gladwin, formerly wife of Charles G. Sutherland, obtained a divorce from him, with a decree for $2,000 alimony, for which execution issued out of the circuit court for the county of Wayne, under which she bid in one undivided third of certain premises in Washtenaw held in common with defendants Sutherland and Quackenbush, under whom Taylor held most of the building on the land as tenant. She brought ejectment for this undivided third and recovered judgment. The declaration claimed the use of an adjacent alley, and the judgment included this, but the finding is silent on the subject. Such an interest is not the subject of ejectment, as it is an intangible and incorporeal easement. Grand Rapids v. Whittlesey, 32 Mich., 192; Bay County v. Bradley, 39 Mich. Being of such a nature the recital of such a right in the judgment is nugatory, and cannot affect its validity.

The objections to Mrs. Gladwin’s recovery were based on supposed insufficiencies in the finding and on alleged illegalities in the execution and sale.-

The objections that there is no finding which shows defendants below in possession of all the property, and no finding of ouster, rest on the supposition that no part of the finding of facts is contained in that part of the finding headed conclusions of law. As every finding is one and entire, and stands in lieu of a special verdict, we must receive everything evidently intended as facts found, no matter in what part it is set forth. It would have been better to place all such matters by themselves, but the separation does not make the document imperfect. The case finds that Taylor is in possession of most of the premises, and that the other defendants enjoy and control the whole, and all unite in disputing the validity of plaintiff’s claim. It also shows that one of the defendants claims the very title which Mrs. Glad-win asserts as her own.

There is therefore no further question except as to the validity of her title.

It is claimed first, that the decree for alimony is void because a gross sum instead of an annual payment. It is sufficient in this regard to say that inasmuch as the circuit court of Wayne county had jurisdiction over the divorce suit, it had jurisdiction to grant alimony, and that for this reason, if any decree is regarded as improper, it should have been complained of by appeal. There is no possible ground on which such a decree can be regarded as void. We need not consider whether the objection is well founded. The practice is now expressly authorized by statute, and there are many considerations which make it desirable to separate the dealings of divorced parties and relieve them from further discords. But the question is not before us now.

If the court had power to make the decree, its power to enforce it by execution is clear under the statutes concerning the enforcement of money decrees then existing. It is urged, however, that the execution was not regularly issued, because the order allowing it to issue was made before enrollment.

The execution itself was not issued until after the decree was enrolled, and this is the full extent of the statute. The court rule No. 80, which does not allow proceedings to enforce a decree before enrollment, has no reference to orders of the court, but to proceedings in execution of the decree- itself, as by sale or other ministerial action, and the practice as to chancery sales has allowed the preliminary steps of advertising -and other preparatory measures, in advance of enrollment, but has required the sale to be made after enrollment. We do not think there is any force in this point, — either under the rule or under the statute.

The execution being regular, the only remaining question is whether the fact that the certificate of sale was not filed in proper time, avoids the sale. The execution shows a proper levy during its life and a few days after its date. The deed was properly made by the successor of the sheriff who made the sale. But the certificate of sale, dated July 23, 1872, was not filed till October 22, 1874, and the deed was made in November, 1874. The statute directs the certificate to be filed in ten days and allows a redemption within a year to the debtor, and within fifteen months to judgment creditors. No one appears to have set up any right under the execution defendant until he deeded to his brother Solomon in August, 1877. This was nearly three years after the certificate was filed.

We find no authority for claiming that a sheriff can deprive an execution purchaser of his title by failing to perform his official duty of filing the certificate of sale. If the execution debtor or third persons are honestly misled by its absence from the files, they may very properly complain unless they are protected. But except to protect them in their purchases or other rights of claim or redemption, there is no reason, and we think there is no rule of law which regards the failure to file the certificate as impairing the purchasers rights. This was distinctly decided in the early case under a similar statute, of Jackson v. Young, 5 Cow., 269; and a similar principle was suggested in Lilly v. Gibbs, 39 Mich.

We find no error in the judgment except the unimportant one concerning the use of the alley, which should be corrected. The judgment with this correction must be affirmed with costs, and the cause remanded to- the circuit court for any necessary further proceedings.

The other Justices concurred.