Crawford v. Tuller

Cooley, Ch. J.: This is a petition to set aside a decree and sale in a forecloseure case. The sale was made in 1859. The petitioner, who was proceeded against as a non-resident mortgagor, insists that the court never obtained jurisdiction because of certain defects which need not be specified. She also claims that she never gave the mortgage on which the decree was rendered. The complainant in the case is alleged to have deceased soon after the sale was made, and the land is claimed and occupied by a third party. We held in the case of Hill v. Robinson, decided last term (not reported), that a party attacking a judicial sale as invalid after the rights of a third party had accrued, should be required to do so by some original proceeding in which an issue could be formed and tried in the ordinary way. The ruling is applicable here. If the petitioner is right in her allegation that she never gave the mortgage, she has her remedy by ejectment, and perhaps by bill in equity; if she gave the mortgage, but the proceedings against her are invalid, a bill to redeem might be the appropriate remedy. But *without indicating the particular course which the petitioner should take, it is sufficient to say on this petition that the rights of third persons are not to be adjudicated in this summary manner. They must be brought into court as parties in some regular form. The order appealed from is affirmed, with costs. The other justices concurred.