ALLEN v. CARPENTER. e. After the time of redemption has expired, the mortgagor remains lawfully in possession as tenant at will or by sufferance, against the mortgagee who permits him to remain without objection. This was the case before redemption, before the passage of the act of 1843, prohibiting actions of ejectment before foreclosure and the expiration of the time of redemption. The legal rights of the mortgagor is the same in both cases. His equitable rights before foreclosure and redemption entitled him to redeem. 1 Mich. R. 68. His position, then, after expiration of time of redemption, was that of tenant at will, modified, of course, by the provisions of the statute. -2 C. L. p. 1324, §12, Clause 3; Id. 1365, § 10. The advertisement and filing of the papers in Register's office were only constructive notices so as to bar redemption. 2 C. L. Chap. 157. There was no actual notice of the foreclosure. The testimony shows that Prior had no notice until after the sale from Clark to Allen. Prior, then, after March 22d, 1863-the date of the expiration of the time of redemption - remained in possession lawfully, and not as a wrong doer, when Clark, knowing the fact of the foreclosure and expiration of the time of redemption allowed Prior, ignorant of both, to go on and put in crops, and continue to occupy the premises. He put him in the position of a tenant at will, or at least tenant by sufferance, and he was entitled to notice to quit by the terms of the statute. COOLEY J. The facts in this case are briefly the following: One Clark being the owner of a mortgage given by Henry Prior on a farm owned by the latter, took proceedings for its foreclosure under the power of sale, and ALLEN V. CARPENTER. Clark caused the premises to be struck off to himself for the amount of the mortgage and costs. The time for redemption under the foreclosure expired March 22, 1863. does not appear to have had any communication with Prior in regard to the foreclosure, either before or after the sale, and Prior testifies that he was not aware of the proceedings until the last of June or first of July, 1863. In the spring of that year he put in crops upon the farm as usual. On June 25, 1863, Clark, for a nominal consideration of about the foreclosure moneys and interest, conveyed the farm to Allen, who, within a few days thereafter, demanded and endeavored to obtain possession, but his proceedings for that purpose were resisted by Prior on the ground of irregularity and fraud in the foreclosIn this contest, Prior proved unsuccessful, and Allen obtained judgment for the possession of the land September 2, 1864, in proceedings before a Circuit Court Commissioner under Chapter 150 of the Compiled Laws. The defendants in this case, who were Prior's neighbors, then turned out and assisted him to remove from the premises the crops which he had grown thereon, and which were ripened, and a part of them harvested at the date of the Commissioner's judgment. For this assistance the present action was brought. ure. The questions which become material for us to consider upon this record, are: First, whether the proceedings before the Commissioner are conclusive upon Prior, and determine for all collateral inquiries the right of Allen to possession of the land at the time those proceedings were commenced? and if not, and we are at liberty to go back of them, then Second, whether Prior, under the statute, was entitled to notice from Allen before he could be lawfully dispossessed by him? 1. The Circuit Judge held the proceedings before the Commissioner void for want of jurisdiction. It appears from the Commissioner's record- which was put in evidence that the proceedings were commenced August 29th, ALLEN v. CARPENTER. -in what year is not stated-and that they resulted in a judgment for the complainant September 2d, 1864. The complaint averred in the usual form that Allen was entitled to the possession of the premises, and that Prior held them unlawfully and against the right of complainant. It was not dated at all; but it was sworn to as required by the statute, and the jurat was dated August 29th, 1861. On its face, therefore, the complaint showed a right in Allen to the possession of the premises three years before the proceedings were commenced, but did not show or allege his right at any subsequent time. There was a plea to this complaint, and it is argued that this is a waiver of any errors. Jurisdiction over the person may be given by voluntary appearance and plea; but jurisdiction of the subject matter cannot be given by consent. Even in those cases where parties are authorized to appear and enter a voluntary confession of judgment, it has been several times held in this State that the proceedings were void if any of the statutory requisites were omitted. Clark v. Holmes, 1 Doug. 390; Beach v. Botsford, 1 Doug. 199; Spears v. Carter, 1 Mich. 19; Wilson v. Davis, 1 Mich. 156. But the present case is not one in which jurisdiction can be obtained by mere consent or confession, or in any other manner except through the complaint which the statute prescribes; and the fundamental rule, that the jurisdiction of special and limited tribunals must affirmatively appear on the face of the proceedings or they are void — (Chandler v. Nash, 5 Mich. 409,) – has always been applied to these summary trials with great strictness. In the two cases of Bush v. Dunham, 4 Mich. 339, and Bryan v. Smith, 10 Mich. 229, the defect in the proceedings was precisely the same as in this case: a failure in the complaint to show a right to possession in the plaintiff at the time it was presented to the Commissioner; and in both, the judgment was held void. In the case last named the complaint averred that ALLEN . CARPENTER. the complainant became entitled to the possession of the premises at a time mentioned, which was some fourteen months before the date of the complaint; but it was held that an express allegation of the existing right of the complainant could not be dispensed with. Under these decisions it seems to me impossible to sustain these proceedings, and that the appearance and plea of the defendant are immaterial. No consent of parties could vest the Commissioner with power to try the rights of the parties at any period anterior to their commencement, as that would be as clearly beyond his statutory powers as the trial by consent of an action of ejectment. It was suggested, however, in the Court below, that the date to the jurat was a mistake of 1861 for 1864; and the Circuit Judge at first admitted evidence to show this mistake. This evidence seems to me clearly inadmissible. A record must be its own interpreter- Rood v. School District, etc. 1 Doug. 502; and if it fails to show jurisdiction on its face, it is impossible to sustain it by proof of facts which rest in the recollection or intentions of witnesses. I say nothing now of any amendment or motion to amend; for here there was no attempt of the kind the naked case was a record offered in evidence which failed to show jurisdiction, and an attempt to sustain it, not by correction, but by parol evidence of a mistake made in drafting it. If this can be done, it is evident that the validity of the record must depend upon the parol proof; and this same proceeding might be held valid one day, and void the next, if the witness in the mean time had deceased, or his testimony for any other reason become unattainable. It seems to me very clear that such evidence is at war with the fundamental rules which govern the examination of judicial records; and that the Circuit Judge was right in his final conclusion. 2. The second question is of more general importance, and arises under $2807 of Compiled Laws, which provides ALLEN V. CARPENTER. that "All estates at will and at sufferance may be determined by either party, by three months' notice given to the other party." If Prior, at the time Allen acquired his right, was tenant either at will or at sufferance within the meaning of this statute, he was entitled to the notice specified, and he could not lawfully be deprived of the possession of the premises, or of the crops grown by him upon them, until such notice was given. A tenant at sufferance is defined to be one who, having come into possession by right, holds over without right. Co. Lit. 57 b.; 2 Bl. Com. 150. A mortgagor whose estate has been terminated by foreclosure proceedings, is strictly within this definition. - Kinsley v. Ames, 2 Met. 31. At common law such a tenant was not entitled to notice, but the owner might enter at any time, and having regained possession, sue the tenant in trespass for his occupation. Dorrell v. Johnson, 17 Pick. 266; Butcher v. Butcher, 7 B. & C. 399; Hey v. Moorehouse, 6 Bing. N. C. 52; Pearce v. Ferris, 10 N. Y. 283. The possession of the latter being wrongful, continues only by the latches of the owner, since, if assented to, the tenancy ceases to be one at sufferance, and becomes a tenancy at will or from year to year. 1 Washb, on Real Pr. 394. It is apparent that the term tenant at sufferance cannot be used in the statute in a sense which would entitle any one holding over wrongfully to the statutory notice, since that would put it in the power of any occupant to prolong a wrongful possession indefinitely. It may, therefore, be well to look at the decisions under similar statutes for aid in giving these words their proper construction. In Kinsley v. Ames, 2 Met. 29, a mortgagor who had held over for a month after his right was terminated by foreclosure, before possession was demanded from him, was held not entitled to notice, on the ground that the statute which required notice to tenants at will and at sufferance had been so amended as to apply to tenants at will only. |