Gerasimos v. Wartell

In the case of Gerasimos v. Wartell's Estate, a decree of foreclosure was entered in favor of defendant on her cross-bill on October 29, 1924. The plaintiffs duly appealed therefrom. On the first hearing in this court, the record was remanded for further proof (234 Mich. 102). On a second hearing, the decree of foreclosure was affirmed (237 Mich. 1). While the appeal to this court was regularly taken, no stay of proceedings was granted or bond filed. The defendant proceeded to its enforcement, and a sale was thereupon had by a circuit court commissioner on January 29, 1925, under which Greenberg and Friedman became the purchasers. Confirmation was had and deed made pursuant thereto on February 18, 1925, and duly recorded. No redemption was had. On January 28, 1927, the purchasers were put into possession under a writ of assistance issued out of the circuit court. Unless there were jurisdictional defects in the proceedings, the equity of redemption expired on July 29, 1925.

It may be here noted that the plaintiff Ellison first acquired an interest in the property on August 23, 1926, by an assignment by Gerasimos to him of all his right, title, and interest therein. This document was not acknowledged or recorded, nor did it assume to convey subject to the outstanding mortgages. The right to redeem from the sale under the Wartell mortgage had been cut off more than a year prior thereto. He afterwards, and on March. 23, 1927, obtained a quitclaim deed of the property from Gerasimos.

The defects relied on are:

(1) The failure to make suggestion on the record of the death of Harry Rosenthal, administrator of the estate of Moses Wartell.

(2) The omission to enroll the decree of foreclosure.

1. The facts as stated by Mr. Justice POTTER clearly show that this error was cured by what subsequently followed, and I assume that he attaches no importance thereto.

2. The statute (3 Comp. Laws 1915, § 12805) provides for enrollment of the decree by the clerk of the court 20 days after its entry "if no appeal therefrom shall have been claimed, and no petition for a rehearing shall have been presented." The manner of doing so is prescribed in this and the following section. Section 13759 prescribes the duty of the clerk when the appeal is perfected. He shall —

"attach together the original bill, process, answer, and all other proceedings, processes, motions, notices, orders and decrees which have been filed in said cause, together with the testimony as settled in the said cause, and also a copy of all journal and calendar entries and all other proceedings of record in the cause not embraced in the original papers hereinbefore mentioned, and transmit the same, together with his certificates of the genuineness of the said originals and the correctness of said copies of such journal and calendar entries and records, to the Supreme Court within fifteen days after such appeal shall be perfected."

When a case is finally determined in the Supreme Court, the records and files are remitted to the circuit court. Section 13761. To hold that the decree must be enrolled before action is taken for its enforcement, when no bond has been filed, would be equivalent to holding that the filing of the notice of appeal in itself operates as a stay of proceedings. The object of enrollment

"is to protect purchasers at chancery sales from loss of material documents from the files, the absence of which might impair or invalidate their title." Hochgraef v. Hendrie,66 Mich. 556, 561.

The action of the clerk on appeal in attaching together and certifying the papers on file is, in effect, an enrollment of the decree.

Section 13756 reads:

"No appeal shall operate to stay proceedings in said cause, unless the party taking such appeal shall, within the time allowed for perfecting such appeal, file with the clerk of said court a bond to the appellee or appellees with sufficient surety or sureties to be approved by the circuit judge or a circuit court commissioner of said county or a Justice of the Supreme Court, and with such penalty as such judge or commissioner shall approve, conditioned for the performance or satisfaction of the decree or final order of the Supreme Court in the cause, and payment of all costs of the appellee or appellees in the matter of the appeal."

In Pinel v. Pinel, 172 Mich. 611, 614, it was said:

"The defendant having failed to give and file the statutory appeal bond, the proceedings under the decree are not stayed, and the complainants may proceed, at their peril, to enforce their rights thereunder."

Reliance is placed upon the provisions of Circuit Court Rule No. 55. It is said to be in conflict with section 12805. This rule must be read in the light of the statute pertaining to appeals. It makes no reference thereto. In my opinion, the act of the clerk, when the appeal was perfected, in attaching together the original papers filed and adding his certificate thereto, was a substantial compliance with the enrollment provision and takes the place thereof.

If the purchasers at the foreclosure sale under the Wartell mortgage acquired title on July 29, 1925, and the right of redemption on the part of Gerasimos and those who subsequently acquired his interest was at that time cut off, this court should not set the proceedings aside and permit plaintiff to redeem from that mortgage because he will suffer loss on account of his subsequent dealings with Gerasimos, with which the owners under the deed acquired at the sale had no concern.

Neither should the fact that the present owner sought to perfect the proceedings had in the foreclosure suit by securing the order for enrollment nunc pro tunc be said to affect his rights under his purchase if such proceeding was unnecessary as a matter of law. It was authorized, however, by section 12811, 3 Comp. Laws 1915. See Powell v. Pierce, 168 Mich. 427; Austin v. Austin, 173 Mich. 47.

The decree of the trial court fixed the amount required to be paid by Lifshitz to redeem from the Darmstaetter mortgage. Of this, Lifshitz may not complain. To it Ellison is entitled under the decree, and of the provision in this respect he makes no complaint.

The decrees are affirmed, with costs to appellees.

FEAD, C.J., and NORTH, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred with SHARPE, J.