
    William H. Shier v. George H. Prentis et al.
    
      NoUae of foreclosure sale.
    
    1. A foreclosure sale is illegal if made without notice to defendants before the date fixed by the decree for the payment, in default of which sale may be made.
    2. The right of defendant in foreclosure to all the time the decree allows him for making payment, cannot be presumed waived in order to sustain a sale prematurely made without notice to him.
    Appeal from Wayne. (Speed, J.)
    Oct 15. —
    Oct. 22.
    Petition to require payment of deficiency on foreclosure. Complainant appeals.
    Affirmed.
    
      J. G. Dickinson for complainant.
    
      Henry M. Cheever for defendant Prentis.
    Both advertisement and sale on foreclosure must follow the service of subpoena by a full year: Chan. Rule 92; Detroit F. & M. Ins. Co. v. Rentz 33 Mich. 298; Culver v. McKeown 43 Mich. 324; Burt v. Thomas 49 Mich. 464.
   Campbell, J.

Under a foreclosure decree in this case, it was provided that defendant should pay the sum due by March 15,1883, and in default of payment that the premises might be thereafter sold. Instead of pursuing this decree, the circuit court commissioner advertised on the 21st of December, 1882, and sold on February 3,1S83, and an order nisi was entered February 23, 1883. No notice of any of these matters was given defendants. The commissioner reported a deficiency. On application for execution these facts appeared, and the court below refused to grant it, and complainant appeals.

The sale was premature and illegal, and defendants cannot be deemed to have waived any right, when they were not bound to suppose any sale could be had or report filed prematurely. The case is too plain to bear discussion.

The order must be affirmed with costs.

The other Justices concurred.  