ELECTION OF REMEDIES - DEFICIENCY DECREE AS BAR TO SUBSEQUENT SUIT ON DEBT

After foreclosure in Florida of a purchase money mortgage on Florida land, the mortgagee filed a claim for the deficiency against the estate of one of the co-mortgagors, who was a permanent resident of Michigan, and who had been served only by publication in the foreclosure suit. In the foreclosure proceedings the mortgagee had prayed for a deficiency decree, and the Florida court had retained jurisdiction for that purpose, after ordering the sale. The mortgagee had taken no further steps in that proceeding. Held, the Florida law was controlling, and that by Florida statutes, as construed by the courts of that state, a mortgage must elect between proceeding in equity for a deficiency decree and a suit at law.

The election was exercised by the mere prayer for a deficiency decree. Since the Florida court accepted and retained jurisdiction, the plaintiff's action was barred. Battle v. Battjes, 274 Mich. 267, 264 N.W. 367 (1936).