Jewett v. Morris

3 N.W. 186, 41 Mich. 689, 1879 Mich. LEXIS 932

• Court: Michigan Supreme Court
• Decided: October 21, 1879
• Status: Published

Opinion

Marston, J.

This is an appeal from an order of the circuit court in chancery setting aside a sale of real estate made in accordance with a decree in a foreclosure case, opening said decree and referring the cause to a circuit court commissioner to take proofs.

The decree was rendered November 20th, 1877, the sale was made September 24th, 1878, and the premises sold to Burton Jarvis, who was not a party in the foreclosure proceedings. A deed was executed to Jarvis by the commissioner on the same day of the sale, and by Jarvis recorded the 11th day of November following.

The petition to set aside this sale was filed March 25th, 1879, by Abigail Morris, and sets forth that she is the wife of the mortgagor, who was insane at the time the mortgage was given by him; that in the foreclosure suit she was appointed guardian ad litem, and that she acted under the advice of counsel and submitted the charge of the suit wholly to counsel; that the property was sold at less than one-fourth its actual value to Jarvis, and that Jarvis has paid nothing for the land.

It also appears from the record that the petitioner as guardian ad litem put in an answer and that proofs were taken upon which the decree was rendered. Jarvis was not brought into court and had no notice of the proceedings taken upon the petition.

It would seem one of the plainest principles in jurisprudence, that where third parties had acquired rights under judicial proceedings, they could not be deprived thereof, without being in some way brought into court and given an opportunity to be heard. This was held in Crawford v. Taller, 35 Mich., 57, and the rule there laid down must govern in this case. The order setting aside the sale and opening the case must be set aside with costs to appellants.

The other Justices concurred.