* *

there was no remedy in equity against anything but the lands mortgaged, in that State (Dunkley v. Van Buren, 3 Johns. Ch. 330), and such was the general rule (Downing v. Palmateer, 1 T. B. Mon. 66). The debt could only be collected at law. The Michigan Revised Statutes of 1838 prohibited proceeding at law and in equity at the same time, and provided that the personal claim might be pursued against the mortgagor; but in giving this power it was made to act as a supplementary process. 'On coming in of the report of sale, the court shall have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the premises, in the cases in which such balance is recoverable at law, and for that purpose may issue the necessary executions, as in other cases, against other property of the mortgagor.' Rev. Stat. 1838, p. 376, § 105. * Our present statutes on this subject are in all respects the same with those of 1838, and those were borrowed from the laws of New York. The language is unambiguous in requiring the action which shall finally authorize the issue of an execution to be based on the confirmation of a report of deficiency. The proceeding is essentially new and supplementary, and not a mere continuation of the foreclosure. It resembles the proceeding had on the coming due of a new installment, which, although it is usually provided for in the original decree, is nevertheless as distinct a proceeding as a scire facias for further breaches of a bond. Brown v. Thompson, 29 Mich. 72. It was not until 1840, in McCarthy v. Graham, 8 Paige, 480, that it was settled by any reported decision that a contingent provision for personal liability could be inserted in the original decree. But it is merely contingent. It has never been held that an absolute decree can be rendered before the confirmation of the report, so as to operate as a final judgment. The practice in Michigan has generally conformed to the chancellor's decision in McCarthy v. Graham."

See, also, Howe v. Lemon, 37 Mich. 164; Gies v. Green, 42 Mich. 107; Ransom v. Sutherland, 46 Mich. 489; McCrickett v. Wilson, 50 Mich. 513; Vaughan v. Black, 63 Mich. 215; Shields v. Riopelle, Id. 458.

In Shelden v. Erskine, 78 Mich. 627, at page 633, Justice CAMPBELL said, speaking of the jurisdiction of the court to render a personal decree in such cases:

"It is also to be exercised, and the trial of liability had, on a new hearing, after the deficiency is reported. Any decree in advance of sale made for payment is, at best, no more than declaratory, and can fix no rights."

The cases hold very clearly the attempt to take a personal decree is substantially a new proceeding, requiring personal service upon the defendant, if he can be found. In this case it was the duty of the complainant, before a personal decree could be taken against the defendant, to serve him personally with notice of the application. When the decree was taken, Mr. Richardson was in default. He could not contest the amount due on the mortgage, for there was no dispute about the amount. He could not question the lien upon the land, for the bankruptcy proceedings could not discharge the lien. He had no reason to suppose an attempt would be made to take a decree against him personally, for the statute, by its terms, did. not authorize such a decree until after sale; and, as construed by the courts, the statute did not permit the taking of a personal decree without the filing of a petition, and notice to him personally. He had a right to answer the petition. While he could not dispute the amount which was due upon the mortgage, he could set up any defense which would operate to discharge his liability upon the debt. He would have had a right to show that the debt secured by the mortgage was in existence when the bankruptcy proceedings were commenced, and was provable in the bankruptcy proceedings, and his discharge in bankruptcy. The discharge would not be a defense to the mortgage, but it would be a defense to a decree against Mr. Richardson personally for deficiency. McDougald v. Reid, 5 Ala. 810; Ewing v. Peck, 17 Ala. 339; Roberts v. Wood, 38 Wis. 60; Luning v. Brady, 10 Cal. 265. Mr. Richardson was never informed it was proposed to take a personal decree against him for the deficiency. He never had an opportunity to plead his discharge in bankruptcy to an application of that character. He was entitled to such an opportunity before he could be

cut off by the decree. Dresser v. Brooks, 3 Barb. 429; McDonald v. Ingraham, 30 Miss. 389 (64 Am. Dec. 166); Boynton v. Ball, 121 U. S. 457.

If he had been properly brought into court before the personal decree was taken, and failed to plead his discharge in bankruptcy, a different question would be presented.

The judgment is affirmed.

The other Justices concurred.

BARNUM v. BARNES.

1. TAX SALES-SUFFICIENCY OF PETITION.

A proceeding for the sale of land delinquent for taxes was found to have been based upon a petition forming a part of the tax record in the county treasurer's office, rather than upon an incomplete instrument found among the files in the office of the register in chancery.

2. SAME-DECREE-DESCRIPTION OF LANDS.

The decree in a tax proceeding, as recorded, need not contain a description of the lands to be sold; the statute (Act No. 206, Pub. Acts 1893, § 67) contemplating that the tax record, with its entries, shall be considered a part of the decree by refer

ence.

3. SAME-REPORT OF SALE-SUFFICIENCY.

A county treasurer's report of a tax sale, filed with the county clerk, may refer to the tax record for the particulars of the sale, and need not set forth the same in full. Jenison v. Conklin, 114 Mich. 9, followed.

4. SAME-DECREE-TIME OF ENTRY.

A tax sale is not void because 10 days did not intervene between the date of the decree and the date of sale. Hooker v. Bond, ante, 255, followed.

5. SAME-WANT OF ENROLLMENT.

Nor is it void because the proceedings were not enrolled; 2

How. Stat. §§ 6648, 6649, and Chancery Rule No. 24, not being applicable to such a case.

6. SAME-SALE TO STATE-VALIDITY.

Under section 70 of the tax law, it is not necessary that the sale should be kept open for 20 days before bidding off the land to the State, but it is sufficient if, on being reoffered before the close of the sale, it is found impossible to sell the land for the amount of the tax.

7. SAME-VOID SALE-REMEDIES.

Whether the validity of a tax sale can be questioned by petition in the main case after the rights of third parties have intervened, or whether the proper remedy is by bill of review, --quære.

Appeal from Van Buren; Buck, J. Submitted June 8, 1898. Decided September 27, 1898.

Petition by Isaac E. Barnum against Arthur E. Barnes and the auditor general to set aside a tax sale. From a decree dismissing the petition, petitioner appeals. Affirmed.

E. A. & Robert B. Crane, for petitioner.

Williams & Williams, for defendant Barnes.
James E. Chandler, for the auditor general.

HOOKER, J. The petitioner is a mortgagee of the premises in question, which were sold for the tax of 1893, under a decree of the circuit court on petition of the auditor general. The purchaser sold to Barnes, who has appeared by solicitors in this proceeding.

The petition is filed to open the decree entered in the proceedings instituted by the auditor general, under which the sale was made, and allow the petitioner to defend against the tax, upon several grounds set up in the petition. The circuit judge denied the prayer of the petition. The jurisdiction of the circuit court is attacked upon the ground that a sufficient petition was not filed by the auditor general. The decree is said to be defective, in that

it fails to describe any lands to be sold, and because it was not made 10 days prior to the time fixed by law for the sale; also because the county treasurer never made and filed with the clerk a report of sale. It also prays that the sale be set aside because made without enrollment of the case, and because the land was sold on the first day of the sale to the State, instead of offering it from day to day for 20 days.

To prove his case, the petitioner offered in evidence the files found in the office of the register in chancery, who testified that they were all of the files that he found in his office. Among these was a petition, and counsel for the petitioner insist that this must be assumed to be the petition filed in the case, and argue, among other things, that it appears to have been filed one day after the order of publication was made. On the other hand, counsel for the auditor general asserts that this writing was a copy, and was attached to the order of publication. On consulting the original return, we find a printed order signed by the circuit judge, followed by the petition, in the same type, with a memorandum to the printer to print both, which is required by section 66 of the law. Act No. 206, Pub. Acts 1893. It would seem to follow that this cannot be considered the original petition in the case, and we need not discuss the numerous questions raised upon the assumption that it was such.

The record also contains a petition which seems to conform to section 61. It was in book form, containing a list of the lands alleged to be delinquent, and bears the evidence of filing signed by the register. It appears to have been produced from the county treasurer's office. We are satisfied of its identity and sufficiency as the original petition in the case. Mersereau v. Miller, 112 Mich. 103.

The decree is said to be void because as recorded it does not contain the descriptions of lands ordered to be sold. The statute (section 67) prescribes the form of the decree, and clearly indicates that the tax record, with its