New York Baptist Union for Ministerial Education v. Atwell

54 N.W. 760, 95 Mich. 239, 1893 Mich. LEXIS 620

• Court: Michigan Supreme Court
• Decided: April 7, 1893
• Status: Published

Opinion

McGrath, J.

This is ejectment. Plaintiff claimed title by virtue of a decree and sale under certain proceedings to foreclose a mortgage • which • had been given to it. The court below directed a verdict for defendant.

The judgment must be affirmed for two reasons:

First. Defendants in the foreclosure proceedings were attempted to be brought in by publication, on the ground of non-residence. The affidavit was made on the lo'th of the month, and was not filed until the 20th, and an order of publication was made on the latter date. An order of publication must be based upon facts existing at the time the order is made. The rule that as matter of evidence a fact in its nature continuous, being once shown to exist, will often be presumed to continue, unless the contrary be shown, does not apply to the averment of a jurisdictional fact, which must appear as existing at the time the order is made. Bryan v. Smith, 10 Mich. 229; McHugh v. Butler, 39 Id. 185; Armstrong v. Middlestadt, 22 Neb. 711 (30 N. W. Rep. 151).

Second. How. Stat. §§ 6109, 6747, at that time, prior to the amendment of 1885)¹ required notices of sale to be posted in three public places in the township where the sale was to be made, and, if made in a township other than that in which the premises were situated, then such notice should also be posted in three public places in the township in which the premises were situated. The commissionei"’s report of sale recites that he caused notices .of such sale to be advertised for six successive weeks, by causing printed notices thereof to be fastened up in three public places in the township of La Grange, where the sale was made, and also in three 'public places in the village of Dowagiac, where said premises are situated, “ affidavits showing the fastening up of which notices are hereto annexed, marked * Exhibit A.’”' One of the affidavits annexed was that of the publisher, showing the newspaper publication, and the other affidavit set forth that the affiant posted notices “in three public places in the township of La Grange, where said sale occurred,” but contained no averment that notices were posted in the township where the property was situated. The statutory notices of sale are indispensable, and strict proof thereof must appear of record. The statement by the officer in his report of sale •will not avoid a defect in- the affidavit upon which the report rests as proof. Perrien v. Fetters, 35 Mich 233. Parol evidence is inadmissible to supply a jurisdictional defect. Montgomery v. Merrill, 36 Mich. 97.

It is unnecessary to notice the other questions raised by the record.

The judgment is affirmed.

The other Justices concurred.

1 Act No. 124, Laws of 1885, which provides that notices of sale need only he posted in the city, village, or township where the real estate shall he sold.