THOMAS MCPHERSON V. DANIEL J. MCGILLIS AND A Lag-lien law-Sufficiency of affidavit. The provision of How. Stat. § 7987, that an affidavit for attachment shall not be deemed insufficient by reason of the intervention of a day between the date of the jurat and the issuing of the writ, does not apply to proceedings by attachment under the log-lien law. Error to Crawford. (Simpson, J.) Argued October 14, 1892. Decided December 2, 1892. Attachment under log-lien law. Defendant log-owners bring error. Reversed. The facts are sufficiently stated in the opinion. M. J. Connine, for appellants. 0. Palmer, for plaintiff. MCGRATH, C. J. This is an appeal by the owners from a judgment in a proceeding under Act No. 229, Laws of 1887, providing for a lien for labor and services upon logs, etc. The affidavit for the writ of attachment was made on March 5, and the writ issued March 6, 1891. The provision in section 7987 (chap. 275) How. Stat., that an affidavit shall not be deemed insufficient by reason of the intervention of a day between the date of the jurat and the issuing of the writ, applies only to writs issued under that chapter, and not to proceedings by attachment under the log-lien act. This defect was jurisdictional, and ren ders the entire proceeding invalid. Drew v. Dequindre, 2 Doug. 93; Buckley v. Lowry, 2 Mich. 418; Wilson v. It is unnecessary to consider the other allegations of error. The judgment must be reversed as to appellants, and no new trial granted as to them, with costs of both courts to the appellants. The other Justices concurred. DWIGHT MCINTIRE V. CHARLES F. CONRAD ET AL. (ORIG- Mortgage-Assignment — Foreign executor-Foreclosure― Personal liability-Statute of limitations. 1. A foreign executor, before the issuing of ancillary letters upon the probate of the will in Michigan, assigned an undivided half of a mortgage and accompanying note to the mortgagor, which assignment authorized the assignee, in case of payment, to discharge the mortgage. Without any payment having been made to, and without the knowledge of, the executor, the assignee discharged the mortgage, after which ancillary letters testamentary were issued in Michigan to the foreign executor, who assigned the mortgage and note to himself as residuary legatee, and then filed a bill in his individual character to foreclose the mortgage. And in affirming a decree in his favor it is held: a-That, as the assignee was himself the maker of the note and mortgage, the payment referred to in the assignment was one to be made by him to the person entitled to receive the same, and as no payment was made to the executor, who held the remaining interest in the mortgage, the condition precedent to the exercise of the authority to discharge was not fulfilled. b—That the assignment did not relieve any portion of the mortgaged premises from the burden of the mortgage, which remained a security for the entire debt; and that in any foreclosure proceeding both the complainant and mortgagor, being holders of separate interests in the mortgage, would be necessary parties. c-That if interests had intervened after the giving of the mortgage, so that it might be equitable for the mortgagor to enforce the interest assigned to him, he would have that right. 2. How. Stat. § 8722, which provides that if the person entitled to bring any of the personal actions enumerated in chapter 302 shall die before the expiration of the time limited for bringing the same, or within 30 days after the expiration of such time, the action may be commenced by the executor or administrator of the deceased person at any time within two years after granting letters testamentary or of administration, applies to a grant of ancillary letters on the probate of a foreign will. 3. An assignment by a foreign executor of a Michigan mortgage and accompanying note is ineffectual to transfer the securities; citing Reynolds v. McMullen, 55 Mich. 568. Appeal from Marquette. (Stone, J.) 13, 1892. Decided December 2, 1892. Bill to foreclose a mortgage. Decree modified and affirmed. the opinion. Uhl & Crane, for complainant. Argued October Defendant Conrad appeals. MONTGOMERY, J. The original bill was filed to foreclose a mortgage made by the defendant Charles F. Conrad and wife to Arnold McIntire on the 25th day of August, 1873, and given to secure a promissory note of that date for $6,000, with interest at 10 per cent., payable annually, principal sum due four years after date. The mortgage covered an undivided one-sixth interest in certain lands in the county of Marquette, and was duly recorded. In January, 1881, Arnold McIntire died, leaving a last will and testament, whereby, after making certain specific bequests, he bequeathed the residue of the estate to the complainant. At the date of his decease he was a resident of Tompkins county, in the state of New York.' August 15, 1881, the probate court for the county of Marquette allowed this last will and testament as a foreign will, but letters testamentary were not in fact issued to the complainant until March 9, 1891, when complainant gave a bond as executor of the estate to the probate court, and letters testamentary with the will annexed were issued to him. On November 1, 1887, the complainant assigned to the defendant Charles F. Conrad the undivided onehalf interest in this note and mortgage, and this assignment was duly recorded in the office of the register of deeds. On the 23d of April, 1888, the defendant Charles F. Conrad, without the knowledge of the complainant, executed and acknowledged a satisfaction of this mortgage, which recited that the undivided one-half interest in said. mortgage had been assigned to said Charles F. Conrad, and which said discharge was duly recorded. No part of the principal or interest secured by this mortgage has been paid, and on the 2d day of June, 1891, the complainant filed a bill to foreclose this mortgage against the defendant Charles F. Conrad, Mary E. Conrad, and the Saginaw Iron Mining Company. The defendant Conrad appeared, and put in an answer, admitting the execution of the note and mortgage, the record, and assignment to him; and set up: 1. That he had discharged the mortgage of record. 2. That the note and mortgage had been fully paid. 3. That on June 28, 1888, for the consideration of $10,000, he, together with his wife, conveyed certain lands 1 January 31, 1881, the will was admitted to probate in the surrogate's court for Tompkins county, and letters issued to complainant as executor. to the complainant, upon the latter's agreement to retain sufficient of the consideration to pay the amount due him on the mortgage and note, and to pay over the balance. Defendant Conrad also filed a cross-bill, setting up substantially the same facts averred in his answer, and praying an accounting for the $10,000, the surrender of the note and mortgage, and a decree for the statutory penalty; and on the hearing he was further permitted to set up by way of answer and amendment to his cross-bill that McIntire entered into a collusion and conspiracy with one Francis M. Moore to defraud and cheat defendant Conrad out of a one-sixth interest in 2,484 acres of land in the county of Marquette, described in the cross-bill, alleging that he had purchased the lands in question from Francis M. Moore, as assignee in bankruptcy of the Michigan Iron Company, and that Mr. Moore represented to Conrad that, unless he should make a sale of this one-sixth interest, he (Moore) would take away all the title which Conrad had acquired by the sale, and that defendant was induced by the fraudulent representations made by Moore, and McIntire, as the agent of Moore, to make conveyance of the lands in question, and that McIntire, by reason of said conspiracy and collusion, became liable to account for and pay to defendant the full value of said land, which was at the time the sum of $50,000. The case was heard upon proofs taken in open court, and a decree entered in favor of the complainant for the amount due upon the note, with interest, amounting to the sum of $9,958.06; the decree providing that the defendant Charles F. Conrad was personally liable for the payment thereof, and also providing for the usual sale on foreclosure. 1. The charge of fraud set up in the cross-bill is not sustained by the evidence. It appears that in May, 1882, 93 MICH.-34. |