Ward v. Obenauer

77 N.W. 305, 119 Mich. 17, 1898 Mich. LEXIS 40

• Court: Michigan Supreme Court
• Decided: December 13, 1898
• Status: Published

Opinion

Hooker, J.

On May 14, 1891, Charles R. Brownell and Mary B. Brownell, his wife, made a land contract in writing with Obenauer, whereby they agreed to sell premises therein described, upon terms therein stated. On the 1st of the following June, the Brownells assigned their title to the land contract to Ward. This writing contained an undertaking that there was $362.50 unpaid upon the contract, and that, if not paid at maturity, they would be holden for and pay the same. Ward' foreclosed the contract in chancery. The Brownells were parties, and Mrs. Brownell answered, disclaiming any interest in the lot or contract, and denying her personal liability.

The decree shows that the cause was heard upon testimony taken in open court, and it contains an adjudication that Mary B. Brownell'was personally liable for a possible deficiency. The deficiency being reported by the commissioner, Ward filed a petition for execution. Mary B. Brownell answered, setting up the same defense as that contained in her former answer, and appeals from an order granting the prayer of the petition. We are of the opinion that the question was adjudicated on the hearing of the foreclosure case, and that such adjudication is conclusive upon her, under the authority of Jehle v. Brooks, 112 Mich. 131.

The order of the learned circuit j udge is affirmed, with costs.

The other Justices concurred.