
    Sidney Berry v. William P. Innes and others.
    
      Contempt: Decree requiring defendant to execute a deed. A defendant cannot be held guilty of contempt for disobedience of a decree requiring him to execute, acknowledge, and deliver to complainant a deed with special covenant of warranty, until a deed has been presented to him for execution and he has refused. He is not bound at his peril to prepare and execute such a deed as the decree calls for.
    
      Decree: Amendment: Notice. The amendment of a decree without notice is irregular; and though the amendment in this case is one that could not injure defendant, yet the decree being in some particulars not warranted by the case made, the defendant is permitted to take advantage of the error.
    
    
      Heard October 18.
    
    
      Decided October 25.
    
    Appeal in Chancery from Kent Circuit.
    This is an appeal from an order adjudging defendant Innes guilty of contempt for disobedience of a decree requiring him to execute, acknowledge, and deliver to complainant a deed of the premises in suit. The bill was filed to require defendant Innes to deed to complainant certain lands, for the sale of which he had executed contracts, one to Nixon and Ernst and one to William and Edward Trill, Innes’ interest in said contracts having been assigned by defendants Ives and Martin-dale as Innes’ attorneys, to complainant. Ernst, Nixon, and the Trills were not made parties. The decree adjudged the assignments by Ives & Martindale to complainant valid, and then required defendant Innes, within a time specified, to make, execute, acknowledge, and deliver to complainant a good and sufficient warranty deed of the premises, reciting the decree and containing the usual covenants of a warranty deed, excepting, however, said land *contracts, and provided for settling the form of the deed, in case of disagreement, before a commissioner. The decree was amended without notice by inserting the words “one-third part or” between the words “undivided” and “interest” immediately preceding the description of the premises. Defendant Innes filed á petition for leave to file a bill of- review, which was denied. The proceedings for contempt were based on a showing of refusal and neglect by Innes to execute, acknowledge, and deliver the required deed within twenty days after service upon him of a certified copy of the decree, as provided by the decree. The order adjudging him guilty of contempt imposed a fiue of eigffty-four dollars arm required him to pay fifty dollars costs of the proceedings and ordered him committed to the county jail until performance unless sooner discharged by the court.
    
      Taggart, Simonds & Fletcher and S. H. Ballard, for complainant.
    
      James A. Rogers and Norris & TJhl, for defendant Innes.
    
      
       ln Berry v. Innes, 46 Mich., 418, unique proceedings at law growing out of this case criticised.
    
   Per Curiam:

The order adjudging the defendant guilty of contempt was unwarranted. The defendant could not he guilty of contempt until a deed had been presented to him for execution and he had refused to execute it. He was not bound at his peril to prepare and execute such a deed as the decree called for.

But we also think the decree could not lawfully have been amended without notice; and though the amendment could not injure this defendant, yet as the decree itself appears to he in some particulars not warranted by the case made, we think the defendant should he allowed to take advantage of the error. The order appealed from will therefore be reversed, with costs, and leave given to file a hill of review. If the parties cannot now agree what their respective rights are, and settle them without further litigation, Nixon, Ernst, and the Trills ought in some manner to be brought before the court.  