Commercial National Bank v. Gaukler

Brooke, J. (after stating the facts). Defendant’s position, as defined by her counsel, is as follows: “It is, on the other hand, contended on behalf of defendant and appellant, that, by the transaction of April 17, 1908, she was entitled, as a matter of fact and agreement, (a) to have the bill dismissed, and an extension of time, in order to make an advantageous sale of the remainder of the property mortgaged, in parcels, unhampered by pending foreclosure of the mortgage which did not contain a release clause; and, as matter of law, (6) that it was improper for the complainant to take the original bill as confessed, on April 17, 1908, after the transaction of that date; (c) that the only way complainant could have proceeded after the transaction of April 17, 1908, was by the filing of a supplemental bill, which should have accurately set up the entire transaction of April 17, 3 908, instead of merely changing the description of the real estate so as to exclude the lots released; (d) and also that the decree entered must be reversed because it covers taxes which were paid after the supplemental bill was filed, and before they could be included in any decree a new supplemental bill should have been filed; (e) that process should have issued under the supplemental bill and defendant given an opportunity to answer after service thereof.” Upon the question of the alleged agreement of complainant to dismiss its bill at the time of the execution of the partial discharge, we have examined the record with care, and conclude that the learned circuit judge made a proper disposition of the motion to dismiss. Upon the execution of the partial discharge, there was no necessity of filing a supplemental bill. Had none been filed, the decree of foreclosure would simply have omitted the description covered by the lease. There was no new or material averment added by the supplemental bill, and [406] it was unnecessary to issue process thereon. The case of Harris v. Deitrich, 29 Mich. 366, relied upon hy defendant, is not in point, as in that case there was new matter material to the issue set up in the supplemental bill. The other authorities cited by defendant have been examined, but they are not applicable to the state of facts presented in the case at bar. Defendant presents many authorities to the effect that new matter arising after the filing of the original bill must be brought before the court by supplemental bill, and it is urged that the payment of taxes after the bill was filed and before decree was such a matter. There is no doubt of the correctness of the principle contended for. This court, however, has determined that where the mortgage provides for the payment of taxes, as the one here in suit does, those taxes paid between the filing of the bill and the taking of the decree are properly included in the decree. Jehle v. Brooks, 112 Mich. 131 (70 N. W. 440), and cases cited. We find no error in the proceeding, and the decree is affirmed, with”costs to the complainant. Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.