DocketNumber: Docket No. 66
Citation Numbers: 202 Mich. 307
Judges: Bird, Brooke, Kuhn, Moore, Ostrander, Steere, Stone
Filed Date: 7/18/1918
Status: Precedential
Modified Date: 9/8/2022
The plaintiffs William I. Lash-brook and Elsie M. Lashbrook are husband and wife, the other plaintiff their son. Their bill was filed August 2, 1916. Substantially, the following story is told in the bill: William I. Lashbrook owned some land in Wales township, St. Clair county, Michigan. In September, 1901, the land was subject to a mortgage, upon which there was then unpaid some $4,000. He desired to make a division of his real estate between his sons (he had other children), giving to each of his sons Jesse and Harmon 80 acres, and he desired also “to protect himself and the other children against loss in case said division was made.” He consulted the defendant, a banker of Almont, Michigan, with whom he had done business for many years, and in whom he had confidence, and to whom he was not in any manner indebted. Following the conference, and under an arrangement made at the conference, and agreeably with his own wishes, he executed a mortgage upon the land, which was dated September 2, 1901, joined in by his wife, to the defendant to secure the payment of $3,200 and interest at 6 per cent, per annum, according to a promissory note. This instrument was acknowledged on the 5th of September, 1901. He also executed, dated September 3, 1901, a warranty deed to his son Jesse of a portion of the said land, subject to two mortgages, one of them already referred to and the other the one to defendant. He also executed a warranty deed to his son Harmon of a portion of the land, subject to the said two mortgages, both of these deeds being acknowledged September 5, 1901. All three of these instruments were duly recorded. Although her name appears to be signed to the mortgage to defendant, Mrs. Lashbrook
“merely for the purpose of protecting the several members of his family and not as an evidence of any indebtedness to Charles R. Ferguson and was so understood and so received by him to be held in trust until such time as your orator, William I. Lashbrook, should desire to have the same discharged when the said Ferguson agrees to discharge the same.
“That although said mortgage and note purports to draw six per cent, interest, no interest has ever been paid or demanded by the said Ferguson of your orators.”
For two years before the filing of the bill, William I. Lashbrook had been applying to defendant to have him discharge the mortgage, and, while the defendant had not absolutely refused to do so, he had advised the plaintiff not to discharge the same from record, and plaintiff has been unable to obtain a discharge of the mortgage. It is prayed that a decree may be entered discharging the mortgage of record and canceling the note. The note is not described in the bill.
Defendant answered, and, admitting the execution of the instruments referred to, asserts that, when the mortgage in question was given, William I. Lashbrook owed him $3,200, evidenced by a note dated August 28, 1900, secured by a chattel mortgage, and that the real estate mortgage referred to in the bill was given for the purpose of securing the indebtedness evidenced by said note, was not to be held in trust, but was a bona, fide mortgage. The defendant also denies that no interest upon the debt has ever been paid or demanded by defendant, but avers the truth to be that he has frequently demanded interest and that on the 16th of March, 1905, $150 was applied on said note and mortgage. He denies that he advised plaintiff
The issue which was tried was án issue of fact purely, and there was testimony which supports the conclusion of the learned trial judge. On the other hand, there is testimony tending to prove that when the real estate mortgage in question was given William I. Lashbrook was indebted to defendant as the result of prior business transactions between them, and that, whether or not Lashbrook owed the defendant $3,200, he did owe him something, payment of which was secured or was additionally secured by the real estate mortgage.
Whether or not there was an existing indebtedness when the real estate mortgage was given can be certainly determined only by an accounting, which neither party has asked for. It is to be observed also that upon defendant’s own showing his _ mortgage
If, however, neither party has within 60 days after the filing of this opinion signified in writing, filed with the clerk of this court, with proof of service of notice thereof upon the opposite party or parties, a desire to so proceed, the decree of the court below will stand affirmed, with costs to appellees.