Bailey v. Murphy

1 Walk. Ch. 305

• Court: Michigan Court of Chancery
• Decided: September 15, 1843
• Status: Published

Opinion

The Chancellor.

Where a bill is filed to foreclose a mortgage, against a non-resident defendant, who fails to appear within the time allowed by the order for his appearance, the statute provides that if he, at any time before the sale of the mortgaged premises, shall appear, and pay to the complainant such costs as the Court shall award, the Court shall stay the sale, and the same proceedings shall be thereafter had, as if the defendant had been served with process, and had regularly appeared. R. S. 373, § 89.

To avail himself of the statute, two things only are required of the defendant, viz: his appearance befoz'e the mortgaged pz*eznises are sold, on the decree, and the payment of such costs as the Court shall award. The costs only, are left discretionary with the Court, and, on the payment of them, defendant has a right to interpose a defence. The Court will guard against the abuse of this right by defendants, by the power it has to award costs. The statute extends to all defendants. It is not limited to the mortgagor. It makes no distinction between .the mortgagor and a subsequent incumbrancer, and the Court will make none.

Motion granted.