Summary
In Griffin v. Union Trust Company, 166 Ark. 347, 266 S.W. 289, the rule was restated as announced in the early case of Kelly's Heirs v. McGuire, 15 Ark. 555, where the court said: "The value and force of the opinion depends on the general intelligence of the witness, the grounds on which it is based, the opportunities he had for accurate and full observation, and his entire freedom from interest and bias."
Summary of this case from Walsh v. Fairhead ExecutrixOpinion
Docket No. 127, Calendar No. 36,608.
Submitted October 18, 1932.
Decided December 6, 1932.
Appeal from Wayne; Keidan (Harry B.), J. Submitted October 18, 1932. (Docket No. 127, Calendar No. 36,608.) Decided December 6, 1932.
Bill by John A. Griffin and another against Union Guardian Trust Company, a Michigan corporation, and another to set aside a foreclosure sale and restrain summary proceedings. Bill dismissed. Plaintiffs appeal. Affirmed.
Harry J. Lippman, for plaintiffs. Bulkley, Ledyard, Dickinson Wright ( Henry Ledyard, Harold R. Smith, and Augustus C. Ledyard, of counsel), for defendants.
This is a suit to set aside a foreclosure sale and to restrain summary proceedings for possession of the premises involved. The foreclosure was by advertisement. The court dismissed the bill. The plaintiffs have appealed.
1. As principal cause for appeal, the plaintiffs contend that the court erred in refusing to hold the sale void because the premises were sold for a greater amount than was stated to be due in the published notice.
The notice stated the amount due to be $3,536.85. The sale was for $3,957.73. The difference represents taxes which became due and were paid by defendants between the time of notice and date of sale, also interest for the same period and expenses of sale.
By the terms of the mortgage, if the mortgagor was in default for 30 days in payment of the taxes, the defendant was authorized to pay them and add the amount thereof to the mortgage indebtedness. While the advertising was in progress it was discovered that there were outstanding tax liens, which the defendant paid and added to the amount stated to be due in the notice. This it had a right to do. It in no way affected the validity of the sale. 1 Comp. Laws 1929, § 3444; Taan v. American Loan Trust Co., 247 Mich. 683.
2. On the sale the premises were purchased by the defendant mortgagee for the actual amount due. There was no other bidder. The amount of the bid was not paid to the sheriff who conducted the sale. For that reason the plaintiffs contend the sale was invalid.
The amount bid did not exceed the mortgage indebtedness and expenses of sale. There was no surplus. Actual payment to the sheriff would have been an idle gesture.
3. The decree dismissed the plaintiffs' bill and ordered that they deliver possession of the premises to the defendant. The court's right to grant such relief is challenged on the ground that defendants merely answered the bill and asked no affirmative relief.
A similar situation was present in Cooley v. Harris, 92 Mich. 126 . In that case, as in this, the only relief asked was that the bill be dismissed. The court said:
"The facts upon which the relief granted is based are fully set up in the answer, although not followed by a specific prayer for the relief to which such facts clearly entitle the defendants, and in such a case, a court of equity will not hesitate to decree substantial justice, treating the prayer as amended."
In the instant case the defendants were entitled to possession of the premises when they began summary proceedings, December 4, 1930. By filing this suit, which has no meritorious basis, the plaintiffs have succeeded in retaining possession of the premises for two years free of rental. All matters between the parties have now been finally adjudicated. There should be no further delay. Hence, we think substantial justice requires that the prayer of the answer be amended so that the defendants may receive the relief to which they are clearly entitled.
The decree of the circuit court is affirmed, with costs to the defendants.
CLARK, C.J., and POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.