Corning v. Burton

7 Hooker, J. On May 8, 1886, Burton and Ellsworth •executed and delivered to Corning a promissory note for $3,200, and secured it by a mortgage upon real estate. In October, 1887, Burton deeded an undivided half of the premises to Dickerson, the deed stating that it was subject to a mortgage of $3,200 and accrued interest thereon, “one-half of which incumbrarice^Shd debt said second party [i. ■e., Dickerson] assumes and agrees to pay.” On November 10, 1887, Ellsworth deeded to Dickerson the other undivided half of the land, by a deed containing similar provisions. On July 25, 1888, said Dickerson conveyed the — 90 — premises to McQueen, a similar provision in the deed requiring him to pay the mortgage mentioned. Subsequently the executors of Corning filed the bill in this cause, and obtained a decree of foreclosure and sale upon bill taken as confessed for want of appearance, under ' which the premises were sold by the commissioner, and the usual proceedings followed. Burton, Ellsworth, Dickerson, and McQueen were made defendants by the bill. Under a petition for execution against them for a deficiency, Dickerson and McQueen answered, and were heard by counsel. From a denial of the prayer of this petition, complainants appeal. ^ — 91 — Three points are pressed by cotinsel, for Dickerson, who alone resists here the claim of complainants: "1. That the record, as it stood when the application for execution was argued and decided, showed that the court never got jurisdiction to make a personal' decree against Dickerson. “ 2. That the application for leave to file Murphy’s second affidavit, showing service of a copy of the underwriting, being substantially an application to amend a return so as to show such jurisdiction, was improperly made after the decision of the case; that, whenever made, notice thereof should have been served on Dickerson personally; and that the order granting the petition was therefore made without jurisdiction, and was nugatory. “ 3. That no execution for deficiency can issue against defendant Dickerson, because he was not a party to the — 92 — mortgage, and had no contract relations with the mortgagee, and therefore could not be sued at law by the mortgagee to recover the deficiency.” An examination of the files shows that the original subpoena and underwriting were regular. The return of the officer shows that he “ served the within subpoena * * *■ personally * * * by delivering to each of said defendants a true copy of the within subpoena, inscribed copy, * * * and * * * showed * * * the original subpoena, with the seal,” etc. It is argued that this is not a sufficient return, and that it was necessary that the return show not only that the subpoena was served, but that the underwriting was also served. The case of — 93 — Turrill v. Walker, 4 Mich. 185, is cited in support of the proposition. That was an action which was attempted to be commenced by declaration and rule to plead. The return failed to show that any notice of the rule to plead was served. It was said that this was an irregularity. The case, however, did not go off on that point, and the Court intimated that the irregularity had been waived. - The cases are not parallel, however. In the commencement of actions at law by declaration the statute (How. Stat. § 7291) requires two things, to be done, viz., file declaration and enter rule to plead. The declaration must be served, and so must a notice of the rule. But there is nowhere any implication that the rule or notice is a — 94 — part of the declaration. The notice may be a different and separate paper. It is reasonable, therefore, to hold that its service be shown by the return. The form of chancery subpoenas is prescribed by this Court. By Rule 122 it provided for a change in the form of the subpoena as a means of preventing the misapprehension upon the part of defendants that a personal appearance was required upon the return-day under a pecuniary penalty. The rule provides that in lieu of the old form the new subpoena “ shall contain a notice of the filing of the bill, and of the time when appearance may be entered on penalty of default,” and adds that “ there shall be underwritten a notice designating against what defendants a personal decree is asked.” It continues, “ Such subpoena shall be — 95 — In substantial compliance with the form hereto appended.” It requires all to be upon one page. The form appended is entitled “Form' of Subpoena.” This is followed by a form of subpoena proper and the underwriting. This may properly be treated as one instrument, as the Court evidently considered it. A return by an officer that he .served a copy of the within subpoena, which subpoena upon its face contains the underwriting, leaves no room to doubt that service was made of all that appears upon its face, and no more. In Vaughan v. Black, 63 Mich. 216, .the Court held that ■ a failure to serve the notice invalidates a decree for deficiency, but it is not intimated that the officer must return specifically that he served the underwriting. We are of the opinion that the original return was sufficient, and it therefore becomes unnecessary to discuss the question of amendment. We consider it ^unnecessary to discuss at length the proposition that a personal decree may be rendered in a foreclosure case against a grantee of the mortgagor, who has accepted a deed stating that it is subject to the mortgage, which the grantee assumes and agrees to pay. It is settled by repeated decisions in this State and in New York, from which state we borrowed the statute (How. Stat. § 6704) which authorizes it. Such decisions will be found collected in the note to section 6704. Just such a decree was rendered in this case by a court having full jurisdiction of the subject-matter and the parties, from which decree defendants did not choose to appeal. But, if that decree should be thought not conclusive, we have no doubt of the defendant Dickerson’s liability upon this record. It is claimed that by his deed to McQueen upon his undertaking to pay he was released from liability. But we think otherwise. When Dickerson .bought 'the premises, a part of the consideration was his promise to pay this mortgage. His grantors had, and still have, a — 96 — right to require him to perform that promise, just as much, as the mortgagee has the right to say that the mortgagors are still indebted to him, notwithstanding their sale of the land upon the promise that another would' pay the debt. The sale to McQueen does not,deprive any one,not a party to it of rights then existing against Dickerson. Doubtless, equity would say that McQueen was primarily liable, Dickerson next, and the mortgagors last; but all are liable. To-hold otherwise would be to say that Dickerson could escape his personal liability, and compel the mortgagors to pay, by deeding to an impecunious person who should assume the debt. The decree of the circuit court will be reversed, and one entered here in accordance with the prayer of the petition, with costs of both courts. The other Justices concurred,