It is true that defendant's counsel had offered to consent to the framing of an issue and to the taking of proofs as to the facts, but neither side requested that such issue be framed, and the motion was actually submitted on affidavits. And this was the reason why the judge would not decide the facts above mentioned. He claimed to be unable to do so upon mere affidavits; and, in making the order overruling the motion, he reserved the right to the defendant of filing a plea in abatement and thereby raising such issues and tak ing such proofs as to the service as he should deem material. Counsel for defendant, however, had declined to avail himself of this privilege, preferring to insist upon his motion, and has come to this court, asking for a mandamus requiring the circuit judge to set aside the service of the declaration and dismiss the action. In this we think that the defendant, the relator here, has mistaken his remedy. It is true that mandamus has sometimes been granted in such cases, as in Grand Trunk R. Co. v. Circuit Judge, 106 Mich. 248 (64 N. W. 17), and the earlier cases cited in relator's brief. But mandamus is not a writ of right, and, as a general rule, will not lie where the law has provided another remedy. In Michigan Mutual Fire Ins. Co. v. Circuit Judge, 112 Mich. 270 (70 N. W. 582), attention was called to "the growing frequency of applications for mandamus asking this court to review the action of subordinate courts, resulting in overloading this court with work which does not finally dispose of the case," and a determination was there indicated, on the part of this court, to adhere more strictly in the future to the general rule above mentioned. And it was said in that case:

"The writ will be entertained when the court has refused to retain jurisdiction, supposing it had no jurisdiction when it had jurisdiction in fact, because, if the writ was not entertained under such circum

stances, the party would be without remedy. On the contrary, if the court claims jurisdiction in a case where it is not entitled to exercise it, such action of the court can be reviewed by appeal or writ of error. In such a case the writ of mandamus ought not to issue."

In that case, as in the one at bar, it was attempted by mandamus to have the service of process set aside, and the writ was denied for the reason above given.

In Cattermole v. Circuit Judge, 136 Mich. 274 (99 N. W. 1), the opinion, in referring to the above case of Michigan Mutual Fire Ins. Co. v. Circuit Judge, says:

"When that opinion was written, it was the deliberate intention of the court to reduce the practice by mandamus to uniformity, so far as practicable, with reference to the disposition of cases upon jurisdictional questions, denying the writ, under the well-settled rule, where jurisdiction was retained."

And in City of Flint v. Circuit Judge, 146 Mich. 439 (109 N. W. 769), this court considered in some detail the office and scope of a writ of error, and what matters would be brought up by such writ. See, also, Mikkola v. Circuit Judge, 165 Mich. 583 (130 N. W. 1118), and the cases therein cited.

In the instant case the circuit court retained jurisdiction by its order overruling the motion, and relator has a complete remedy by writ of error if it desires to stand upon, and not to waive, its alleged rights. It had also the privilege of testing the sufficiency of the service by plea in abatement, and of bringing the resulting judgment to this court by writ of error, if not satisfactory.

The writ is denied.

BROOKE, C. J., and KUHN, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

MCCREERY v. ROFF.

ROFF v. MILLER.

1. PRACTICE-TITLE-SUMMARY PROCEEDINGS-CIRCUIT COURT COM

MISSIONER.

Upon writ of error to review a judgment for plaintiff in summary proceedings for the possession of real property, the cause should be entitled in the names of the parties to the proceeding before the circuit court commissioner, who is not properly a party in the circuit or appellate court and should not be named in the title of the action. 2. COSTS-SECURITY - CIRCUIT COURT COMMIS

SIONER.

- NONRESIDENTS

The propriety of entering an order requiring security for costs of a nonresident complainant in summary proceedings is not reviewable but rests in the discretion of the commissioner.

3. MORTGAGES-REDEMPTION-ASSIGNMENTS.

One may purchase the mortgage interest, after foreclosure by advertisement, from the buyer at public sale, and a junior incumbrancer may secure an assignment before sale and foreclose in his own interest or he may buy the equity of the purchaser during the period of redemption.

4. SAME.

And where the prior mortgage was redeemed the second mortgagee, or his assignee, might foreclose as against the owner or any subordinate interests.

5. SAME-JUNIOR INCUMBRANCE.

In the absence of peculiar and unusual equities, no rea son is apparent why the holder of a second mortgage may not purchase the equitable interest acquired at foreclosure sale by the first mortgagee, or his representatives, and the effect is not the same as redemption, whereby it has been held that the foreclosure deed becomes void and of no effect.

6. SAME

ESTATES OF DECEDENTS-CONVEYANCES BY EXECUTOR. Section 9361, 3 Comp. Laws, requiring the approval of the probate judge to the assignment of the rights of an es

tate in real property acquired on foreclosure, etc., does not apply to the purchase of a mortgage interest before expiration of the redemption period: it would become applicable after the title of the estate had become absolute.

7. SAME-EQUITABLE DEFENSE-SUMMARY PROCEEDINGS.

The defense of equitable estoppel, based on the theory that the defendant was induced to believe that complainant was not insisting on the rights acquired by foreclosure sale, and he therefore relaxed his effort to raise the money, is an equitable defense and will be entertained only in a suit in chancery.

Error to Calhoun; North, J. Submitted October 6, 1915. (Docket No. 14.) Decided December 22, 1915.

Summary proceedings by Vance McCreery against Frank E. Roff and another for the possession of real property. Judgment for complainant, which defendants removed by certiorari to the circuit court. Judgment for complainant. Defendants bring error. firmed.

J. M. Hatch & Son, for relator.

Winsor & Robinson, for respondent.

Af

PERSON, J. Summary proceedings were begun before the circuit court commissioner by one Vance McCreery to obtain possession of lands alleged in the petition to be held unlawfully and against his rights by Frank E. Roff and Cyrus C. Sterling. The commissioner rendered judgment in favor of the complainant, and the proceedings were removed to the circuit court by certiorari, where the judgment of the commissioner was affirmed. The case is now brought to this court by writ of error. By some inadvertence the proceedings are wrongly entitled both here and in the circuit court. Mr. Roff is not a relator, but a defendant, and the circuit court commissioner is not a party to the cause at all. This is an action in which Vance

McCreery is complainant and Frank E. Roff and Cyrus C. Sterling are defendants, and which should have been so entitled. Inasmuch, however, as it has been fully argued for both sides without objection, and the record shows plainly the actual controversy before the court, we will dispose of it upon its merits.

The defendant Roff became owner of the premises through a quitclaim deed from Cyrus C. Sterling and wife, bearing date December 15, 1911. The consideration was mentioned therein as "one dollar and other considerations." When this conveyance was made to Mr. Roff, the lands were incumbered by two mortgages, the first having been executed to one Joseph Ferguson on April 1, 1909, for $6,000, and interest, and the second to Vance McCreery, on September 28, 1909, for $3,500, and interest. Both were duly recorded. Mr. Ferguson having died, one Charles A. McLees, as the executor of his will, proceeded to foreclose the first mortgage by advertisement, under the statute, and on the foreclosure sale bid in the property as such executor, receiving a sheriff's deed thereof, bearing date October 15, 1913. After the sale, and before the period for redemption had expired, that is, on the 9th day of July, 1914, Vance McCreery, the complainant, to protect his second mortgage, purchased all of the rights of the executor under the foreclosure sale, paying him $6,647.15, the amount of his bid, with interest, and taking from the executor an assignment of the first mortgage, together with a quitclaim deed of the lands. The deed included an assignment of the executor's rights under the foreclosure, in the following language:

"And I also assign, transfer and set over all my right, title and interest to the proceedings in foreclos ure of the above-described mortgage together with all and singular, the hereditaments and appurtenances thereunto belonging or in any wise appertaining."