Gaines v. Simons ( 1900 )

Long, J.

On the 16th day of February, 1897, Alfred Gaines and wife executed and delivered to William S. Green a mortgage on the property in litigation in this suit to secure the repayment of a loan of $3,000, made at that time. In payment of the first installment of interest, Gaines gave to Green a check on a bank in which he had no funds, which check Gaines never paid, although twice notified by letter that the check had been dishonored. The second installment of interest, falling due February 16, 1898, was not paid, and, after notice to - Gaines by letter, Green filed a bill to foreclose said mortgage. The return of the sheriff of Wayne county showed that personal service of the subpoena was had on both Gaines and wife on the 27th day of April, 1898, and on May 9, 1898, John Gr. Hawley caused notice of -his appearance as solicitor for the defendants to be served, and Mr. Hawley was thereafter recognized as such by the complainant’s solicitors, and copies of all papers and notices of all proceedings in the foreclosure case were duly served upon him. The case proceeded in the usual and regular manner to decree, and on the 20th day of June, 1899, the property was duly and regularly sold to David W. Simons for $3,738.13, report of sale was duly confirmed, and a deed executed. Demand for possession having been made, the bill of complaint in this cause was filed to vacate the foreclosure decree.

The bill is based entirely upon want of notice of the pendency of the foreclosure proceedings, and charges the defendants therein with fraudulent conspiracy to injure the complainant. This charge of fraud and conspiracy was found by the court below to be absolutely disproved. Want of notice was likewise disproved. The court below dismissed complainant’s bill.

Counsel for complainant raise other issues. It is claimed that the sale of the premises was irregular, illegal, and void, and not in pursuance of the decree of the court, in that the mortgaged premises were sold together, and not separately, there being two lots; that the complainant made a tender in the court below of the amount due on the mortgage; and that the price for which the lots sold was inadequate. These claims were not set up in the bill, and cannot now be raised.

The decree of the court below must be affirmed, with costs.

The other Justices concurred.