It is contended on behalf of defendant that the failure to comply with the statutory requirement was only an irregularity, which did not render the sale void, but, at most, voidable only, giving the holders of the fee of the mortgaged property the right to redeem and have the sale set aside, provided they acted promptly and were guilty of no laches; but that it clearly appears complainants and those from whom they purchased have lain by without complaint for years and acquiesced in the foreclosure, and they are now estopped by their laches from asserting the irregularity complained of, or from raising any objections at this late date to a foreclosure sale made December, 1895.

Complainants allege in their bill that the title to the lands in which they are interested, where the mortgage and sheriff's deed interests are not merged with the original title, is uncertain and not marketable because of questions raised as to the validity of the statutory foreclosure by John Kudner: and they therefore ask that, in case the court finds the foreclosure void, the mortgage interests held by complainants may be reforeclosed and the owners of the original title be permitted to redeem; and, "on the other hand," if the court holds the foreclosure legal, or if irregular and the irregularity such that if the owners of the original title might have redeemed had they acted promptly, but failing to move in time they are now precluded from doing so, then, in such event, that the court will by decree quiet title in favor of the owners holding under the sheriff's deed.

The alternative, or contingent, prayers for relief, present clearly the propositions involved and the reason for this suit, and are as follows:

"That this court adjudicate and determine whether the foreclosure referred to was regular and in accordance with the statute in such case made and provided, or whether the foreclosure, if irregular, involved a

mere irregularity such that, after a lapse of 13 years or more, the title under the sheriff deed has ripened into a valid and subsisting title. In either of which cases your orators pray that the court make and enter up in this cause such decree as will quiet title in favor of the, owners of title under the sheriff deed. That in case the court should find that the said foreclosure was void and of no effect to convey title by sheriff deed under such attempted foreclosure, and this view your orators believe to be the view taken in all such cases by the Michigan Supreme Court; then, in such cases, that this bill be treated as, and have the force of, a bill to foreclose the mortgage in favor of your oratrix, Lydia A. Thomas, and other equitable owners of such mortgage interests."

Defendant Schultz asks no affirmative relief by crossbill or otherwise. In her answer she admits the alleged foreclosure of the Kudner mortgage; denies that it was void; and asserts that her title from that source is valid; denies that the lis pendens or the opinion in the suit in relation to which it was filed affect or constitute any cloud on her title; alleges she has a good and sufficient title to the lots she claims, with possession and the right of possession thereof; denies that complainants have any interest in or right to the same; and asks that their bill of complaint be dismissed with costs.

Under the proofs adduced at the hearing, it was disclosed that, in 1908, defendant Schultz, after obtaining a deed from Kudner to the property she now claims to own, took and asserted possession of the same, posting up notices thereon against trespassers, and still maintains such possession.

Counsel for complainants state that they planted their suit upon Act No. 123, Pub. Acts 1909, enlarging jurisdiction of courts of chancery in certain cases; but, fearing that they are "up against a constitutional question," they now suggest, in this court for the first time so far as the record discloses, that the court should, or may, dismiss their bill on jurisdictional

grounds, under the well-settled rule, as stated in Dolph v. Norton, 158 Mich. 417 (123 N. W. 13) — ·

"That a bill to quiet title brought by one not in possession, against one who is, cannot take the place of an action of ejectment, where the only questions at stake are the legal title and legal right of possession."

They therefore ask, if the court holds such act unconstitutional and the chancery court without jurisdiction, and so dismisses the suit, that their bill be dismissed without prejudice.

Counsel for defendant do not now raise any question as to the validity of said act or jurisdiction of the court, and urge that the parties went to a hearing without questioning either, and claim that, regardless of the act, the court has jurisdiction to hear and decide the issues involved.

The title of said Act No. 123 suggests grave doubts of its applicability, in any event, to a case like this. It is not the policy of this court to pass upon constitutional questions unless the condition of the pleadings and demands of parties to an action render it imperative. But, irrespective of that suggestion, complainants ask for other relief than to have their title quieted; they request that the mortgage foreclosure be passed upon and declared void, and that they be given the right to redeem, as to all their interests in the property where the condition of their title is similar to that of defendant Schultz. This would necessarily discredit and so impair her title, indirectly at least, even if the bill was dismissed as to her. She was made a party to the suit by complainants, and is interested in those questions. If they are to be decided, she has a right to remain a party. She has appeared and answered. The question of jurisdiction was not raised in the circuit court by any one. parties went to a hearing on the merits, without any objection or suggestion to the contrary, and we think

All

the validity of the act of 1909 is not now before this court.

So far as the general equities in the case are concerned, they do not appear to predominate strongly in favor of either side. Both manifestly have engaged in this strife for supremacy of title for speculative purposes, and with their eyes open from the beginning. Neither can be said to be innocent parties in any particular; neither has made any substantial improvements on the property; and whatever physical possession either may have had was for strategic purposes rather than use. The land when platted was suburban farm land, which it was thought, or hoped, would some time be wanted, as the city expanded, for urban purposes. The platting, followed by sale and purchase of lots prior to the foreclosure, was the speculative result of temporary inflation. There was no actual need of the property for settlement and improvement as city lots then, nor, so far as shown, even to the present time. While many lots appear to have been disposed of, no improvements on them or occupation for city purposes is shown. The sobering aftermath was a default in Kudner's mortgage and proceedings by him to foreclose. This was in 1895. He then claimed a balance of $2,595 due him on the mortgage. At that time 160 of the 169 lots had been alienated by Charles and Prine, in 36 different parcels, held by as many owners, and yet Kudner had the property sold as an entirety, on a statutory mortgage foreclosure sale, and, excepting certain lots he had released, bid it in as one parcel and had it conveyed to himself by the sheriff according to the unplatted description. He has never since then taken possession of, or physically asserted any dominion over, it so far as shown.

Complainant Walker asserted possession of a portion of the land, under and through her father, some

time before the conveyances relied upon by the respective parties to this suit had been obtained. She testified he had possession of, and at one time cultivated, "most of this property, just a few years ago," and deeded her part of it, and that she still had possession of the lots which she claims until dispossessed by defendant Schultz in 1908. What her or her father's claim of title or right of possession were, previous to getting her deed in 1908, is not shown, however, nor relied on in this case.

Kudner early learned of the defects in his foreclosure proceedings, by the lis pendens and suit against him, and the announced opinion of the court that it was invalid. Those proceedings stood, and stand, as a public notice of the alleged invalidity; apparently, values had then reached an ebb where neither the complainants cared to go to any further trouble or expense in filing a bill to redeem their few lots, as the court had said they might, nor did Kudner care to go to the trouble and expense of having the suit dismissed to relieve his foreclosure from the cloud upon it, nor to retake possession of the property, or pay taxes assessed against it. His subsequent interest and activities in that connection seem to have been limited to quitclaiming the property, as one of the witnesses testifies, "right along, right and left, without knowing which it was or how it was," to parties who approached him, whenever there was any inducement for him to do so.

In 1908 the growth of Lansing apparently made such property more attractive, and defendant Schultz (who had a husband doing business for her as her agent, and who had some tax titles) procured a quitclaim deed from Kudner of the 18 lots she now claims, "in consideration of one dollar and other good considerations," and proceeded to disturb complainants' "quiet enjoyment" by taking possession of the prop

175 MICH.-19.