Scriven v. Moote

36 Mich. 64, 1877 Mich. LEXIS 84

Opinion

Marston, J:

At the time this case was argued and submitted, my impressions were that Moote might, under his oral arrangement with Scriven, made previous to the foreclosure sale in April, 1874, have some claim to the wheat in question, sowed under such arrangement and previous to such sale. An examination of the record, and of the decision of this court, in Moote v. Scriven, 33 Mich., 500, upon the validity and effect of such oral agreements and of the sale of April, 1874, convinces me that defendant can have no such claim.

In the case referred to, it was held that there was not only no evidence of a bargain conforming to the statute of frauds, whereby Moote was to have any interest, but that there was not convincing proof of any bargain at all, and that whatever may have been the state of things before, the chancery sale cut off all previous equities; that whatever the previous arrangement may have been, Scriven was not obliged to buy in the property at the chancery sale to save what he had previously paid out, and even if he had been a mortgagee, he was not thereby precluded from buying up such title and holding it like any other purchaser, inasmuch as it was a legal sale of the mortgagor’s equity, which any one could buy, unless estopped.—Comp. L., § 5154.

The purchaser at this sale, there being no redemption, became the owner of the crops then growing upon the land, and it is not claimed that he at any time afterwards became divested of the title thus acquired, or did any act which would preclude him from maintaining this ■ action. It is claimed, however, that the bond of July 7, 1874, has such effect. We do not think so. The only authority requiring such bond to be executed to Scriven and filed with the register was an order of the circuit court in chancery-in the case of Moote v. Scriven, already referred to. Scriven never accepted this hond or made any claim under it, and the utmost effect that can be given to it, would be to give Scriven an additional remedy. The order under which it was given did not pretend to and could not well deprive Scriven of any of his substantial rights in the premises. True, the injunction in connection therewith might postpone them, but upon its removal, all Scriven’s rights were restored.

As the rulings below were not in accordance with what is here said, the judgment must be reversed, with costs, and a new trial ordered.

The other Justices concurred.