Ruggles v. First National Bank

Graves, J. In November, 1878, the bank brought trover against Euggles for the conversion of six hundred bushels of oats and two hundred pounds of peppermint oil. He pleaded the general issue, and gave notice of special matter of defense. In the course of the trial, which occurred in March, 1879, the counsel for the bank, after the testimony was closed, asked leave to amend the declaration so as to count for the conversion of a specified crop of peppermint herbs instead of two hundred pounds of peppermint oil. An objection being made, the court observed that if the amendment was permitted it would be upon the terms of opening the case for further defense, if desired, and if not prepared, then upon the further terms of allowing a continuance for preparation. No answer being given to the court’s suggestion, and counsel proceeding to agree upon the proof of the value of the property in question, and plainly disclosing a purpose to complete the trial without delay or further showing notwithstanding the amendment, the court overruled the objection and permitted the change in the declaration upon the terms of payment by the bank of an attorney fee of five dollars. The condition was complied with. The terms were tendered and accepted. In view -of the circumstances of the case it is — 194 — not admitted that if the court had allowed the amendment without terms it would have been an error for which a reversal must have been ordered. But as both parties conformed to the order and virtually assented to the condition, all right to base an exception upon it was foreclosed. The mint and oats in controversy were produced on certain premises which were owned and occupied by one Jones on the 27th of May, 1876, and which on that day he mortgaged to the bank. April 10, 1877, the mortgage was placed on record, and on the 28th of May ensuing the bank filed a bill to foreclose it. A month later notice of pendency of suit was filed. The parties made defendants were the mortgagor and wife, the First National Bank of Sturgis, Fred Wolf and Edgar A. Jones. Subsequent to this, and in September, 1877, Buggies obtained from defendant Wolf a leasehold interest which was subject to the mortgage, and by its own terms to expire in March, 1878, and he immediately took possession under this interest. In December, 1877, at assignee’s sale in bankruptcy proceedings against Jones, the mortgagor, he purchased the equity of redemption. These interests, it will be noticed, which Buggies acquired, were under the mortgagor and subject to the mortgage, and were obtained by Buggies subsequent to the commencement of the foreclosure, and after the filing of the notice of the pendency of that case, and if the suit in equity is to be considered as having effectuated foreclosure his rights were cut off by it. The mint and oats were the growth of 1878, and the bank grounds its right and title on the purchase made by it of the premises under a decree of sale granted in the foreclosure suit. The decree was allowed February 7, 1878, in the usual form. It required payment on or before May 29, 1878, and authorized a sale thereafter in case of default. It is admitted that all the proceedings up to and including the decree were regular. The debt not being paid, the commissioner advertised the premises for sale — 195 — tinder the decree, and on the 15th of July, 1878, being the time appointed, sold them to the bank at a price very much less than the sum called for by the decree. On the same day the report of sale was filed and the usual order of confirmation entered. The fund was also applied and the costs satisfied, and the proper deed executed and acknowledged, and on or before the 25th of July the deed was delivered, and on the last named day the bank caused it to be placed on record; August 6th, on the motion of the solicitor for the bank the commissioner- was ordered to amend his report. The nature of the amendment ordered is not explained by the record. But the commissioner, it appears, assumed to comply and on the same day filed what he denominated an amended report. It misstated, however, the date of the decree, and gave it as July 7 instead of February 7. On the filing of this report a new order of confirmation was entered under the rule. Meanwhile, and after July 31st and before August 6th, Buggies, although notified by the bank that it claimed the property under the purchase on foreclosure, proceeded to appropriate it to his own use. On August 20th it appears there was a hearing on exceptions to the report. What they were is not shown, and we cannot assume for the purpose of finding error, that they were of any force. The only defect apparent is the mistake made in reciting the date of the decree. The circuit judge directed the commissioner to “correct” his report in ten days, and ordered that “upon filing the said corrected report the said sale be and the same is hereby in all respects confirmed.” The nature of the required correction is not expressed, and the only thing to which the requirement can be referred is the mistaken date just mentioned. This defect was of no importance. It was a mere clerical inaccuracy which the record obviated. That the judge approved the sale' is manifest, because he ordered it confirmed. No new proceedings were contemplated. Nothing more was — 196 — sought than an actual correction of the mistaken date, and it appears from the bill of exceptions that the commissioner, in' the course of a day or two after the order, inserted the proper date in the report on file. The court below overruled the objections urged against the equity proceedings, and directed the jury to find in favor of the bank. No fault has been charged against the actual sale made by the commissioner, and none is discovered. That must be deemed valid. It is of the later practice that exception is taken. But we find no evidence in the record of any impropriety more serious than irregularity of practice. If there was greater cause for complaint than that, it should have been disclosed, and in such manner as to be passed upon. So far as the contrary is not apparent, regularity is presumed. The course taken to reform the report and confirm the sale was not good practice. The proceedings were not void, however. If properly applied to, the court in charge of the foreclosure would have allowed the deviations from strict procedure to be corrected. It is not the province of a court of law to review them, nor of any jurisdiction to do so in a collateral case. Torrans v. Hicks 32 Mich. 307; Clason v. Corley 5 Sandf. (S. C.) 454; Dorsey v. Kendall 8 Bush 294; Lynch v. Bernal 9 Wall. 315, 322; Lasell v. Powell 7 Cold. 278; Cockey v. Cole 28 Md. 276; Wilson v. Miller 30 Md. 82. Jurisdictional defects are subject to different considerations. It was contended in the court below that the foreclosure sale had never been confirmed at all, and that notwithstanding the sale itself had taken place, the want of confirmation left the growing crops subject to Buggies’ disposal. The view already explained of the objections to the foreclosure proceedings affords an answer to this claim. Notwithstanding the departures from accurate practice, there were in substance the steps essential to work confirmation, and we think that the order of August 20th, and especially after the correction directed — 197 — by tbe court, operated to confirm the sale of the 15th of July. But as the conversion, although subsequent to the sale, was yet prior to the confirmation, the further claim is made that Buggies, who was in actual- possession, was entitled to appropriate during that interval such crops as were then growing. His right was that of holder of the equity of redemption and nothing else, and this interest he had obtained during the pendency of the suit. Being mortgagee, the bank acquired the same estate by the commissioner’s deed as it would have held in case of foreclosure of the equity of redemption; and it was just as effectual against Buggies as if he as owner of the equity of redemption had executed it. Comp. L. § 5154; Tilton v. Cofield 93 U. S. 163. The crops in controversy were growing at the time of the sale, and they passed by it with the soil to which they were united. Scriven v. Moote 36 Mich. 64; Jones v. Thomas 8 Blackf. 428; Lane v. King 8 Wend. 584; Aldrich v. Reynolds 1 Barb. Ch. 613; Gray v. Brignardello 1 Wall. 634; Bank of United States v. Voorhees 1 McLean 221; Gossom v. Donaldson 18 B. Mon. 230; Irwin v. Jeffers 3 Ohio St. 389. The methods which chancery has recognized for completing proceedings and putting the purchaser in possession by its own authority had not yet been carried out, and the power of the court over the sale had not ceased. But the bank as purchaser had acquired rights which applied as fully to the growing crops as to the soil, and the proceeding giving rise to these rights was the main one in the case to invest the bank with an unqualified title. Buggies could not take upon himself the right to step in and dispose of the crops covered by the sale and purchase except at his own peril. He had no more power to detach them from the operation of the mortgage and foreclosure sale than he had to detach the land. Undoubtedly the court, on proper application and on failure of the parties to arrange amicably, might have provided for the temporary preservation and pro — 198 — tection of the crops. The principle seems to be recognized in the case of Mutual Life Ins. Co. v. Bigler 79 N. Y. 568, just decided by the Court of Appeals. But that is not now important. Whenever the proceedings are not void and the record of the mortgage is regular, the title of the purchaser in these sales in equity under foreclosure decrees takes effect by relation to the delivery of the mortgage as against all intervening purchasers and encumbrancers who are made parties or who become interested pendente lite. Osterberg v. Union Trust Co. 93 U. S. 424; Rorer Judicial Sales § 53; 5 Cruise R. P. 510, 511. The same principle operates to connect the confirmation of the sale as to the growing crops with the sale itself, and to satisfy the sort of condition subsequent to which, by virtue of the practice of the court, the sale is made subject. And where there is no unreasonable or misleading conduct or delay, and no equities will be infringed, the confirmation is entitled to operate in favor of the purchaser’s right from the time of the sale itself, as respects the crops which were not then severed. To preclude misapprehension, it may be added that there may be cases where the purchaser’s conduct would require the court to consider him as having waived or abandoned all right to the crops, or as having estopped himself against asserting any. Such cases must be disposed of as they arise. Here there was no delay of which Buggies' can complain, nor any misleading conduct. He received no prejudice. The proceedings to confirm were commenced on the very day of the sale, and we are not informed that there was any objection which was not frivolous; and as we have seen, Buggies was seasonably notified that the bank claimed these crops under its purchase, and that he must not appropriate them. This purpose was never departed from. No error is shown, and the judgment should be affirmed with costs. Marston, C. J., and Campbell, J., concurred.