Bennos v. Waderlow
| Decision Date | 20 December 1939 |
| Docket Number | No. 21.,21. |
| Citation | 289 N.W. 267,291 Mich. 595 |
| Parties | BENNOS v. WADERLOW et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by James W. Bennos, individually and as administrator of the estate of Gust W. Bennos, deceased, against Benerson A. Waderlow and others, seeking a decree holding a deed to be a mortgage, a foreclosure of a trust mortgage to be a redemption, and to restrain defendants from interfering with plaintiff's possession, management, and operation of premises, and to have defendant Waderlow given an equitable lien. From the decree, plaintiff appeals.
Decree vacated, and cause remanded, with directions.Appeal from Circuit Court, Genesee County; Philip Elliott, judge.
Argued before the Entire Bench.
Fildew & DeGree, of Detroit, for appellant.
Willard H. Bracklow, of Detroit, for appellee Waderlow.
Plaintiff, James W. Bennos, and his brother Gust, who is now deceased, obtained a trust mortgage of $56,500 on an apartment building in the City of Flint in 1928. They placed a $4,800 second mortgage on the property to cover the balance due on the cost of construction, and also had some other unsecured debts.
On October 28, 1930, Bennos gave a deed to Waderlow, conveying the premises in question, and on the same day Waderlow gave Bennos a check for $5,000, which Bennos indorsed. Above his signature appears the statement, ‘For full payment of equity in Bennos Kenmore Apartment at 2602 North Saginaw Street.’ Bennos admitted his signature, but denied that the statement, which is in Waderlow's handwriting, was on the check when it was indorsed. Waderlow admitted that this check was given in a wash transaction for the purpose of showing a greater value in the property and that Bennos did not receive the proceeds. Waderlow then gave Bennos a land contract, dated December 5, 1930, whereby he agreed to sell the property to Bennos for $71,000. This contract recited a down payment by Bennos of $5,000 (the amount of the check) and a balance to be paid of some $66,000. It is claimed that this $66,000 covers all of the moneys paid by Waderlow and those obligations of Bennos for which Waderlow assumed responsibility.
Failing to procure a new mortgage on the property, Waderlow later purchased, over a period, the outstanding trust mortgage bonds at varying prices, and had new trustees substituted who subsequently foreclosed this mortgage either for the benefit of Waderlow and Bennos or Waderlow alone. When Bennos was served with notice of the foreclosure proceedings, he was advised by Waderlow that it was unnecessary for him to appear and that foreclosure was being had for the purpose of vesting title absolutely in the trustees in order to clear up some defects therein.
The trial court held as to the trust mortgage proceedings that Waderlow was the moving party, that he conspired with others to keep Bennos from appearing, and that the rights he acquired thereunder ‘should be construed to be a redemption from the first mortgage.’
The record contains two written declarations signed by Waderlow, one dated April 24, 1933, and the other, March 18, 1935, in which he recognizes the interest of Bennos in the property and agrees to give credit to Bennos upon the ‘land contract of an amount equal to one-half the difference between the said bond issue and the cost and expense of redemption from the same,’ etc. The second agreement adds an undertaking to divide any profit that may be realized if the property is sold to others.
The testimony of both Waderlow and Bennos is most unsatisfactory in many particulars, each of them seemingly suffering from a ‘lapse of memory.’ It is unnecessary to recite more of the complicated facts surrounding the transactions between the parties.
In February of 1936, Bennos filed a bill in which he sought a decree holding the deed to be a mortgage, the foreclosure of the trust mortgage to be a redemption, and that Waderlow be given an equitable lien for such moneys as might be found to be due him after an accounting. Henke was made a party defendant on the theory that whatever interests he might have in the premises were held solely for the benefit of Waderlow. Also joined as defendants were Colby and Roehl, the...
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Corkins v. Ritter
...case it was decided that as a matter of law Corkins could not recover for the improvements. Equity follows the law, Bennos v. Waderlow, 291 Mich. 595, 289 N.W. 267, and as a rule will not permit that to be done by indirection which cannot be done directly, Daley v. City of Melvindale, 271 M......
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Kubczak v. Chemical Bank & Trust Co.
...obtain possession, but only for consideration, id. at 463, 270 N.W. 748, and pursuant to an explicit agreement. Bennos v. Waderlow, 291 Mich. 595, 600, 289 N.W. 267 (1939); Russo v. Wolbers, 116 Mich.App. 327, 323 N.W.2d 385 (1982). Nothing in the record indicates that any agreement was mad......
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Iwanski v. Fed. Home Loan Mortg. Corp. (In re Iwanski)
...Co., 456 Mich. 653, 575 N.W.2d 745, 747–48 (1998). The benefits of possession include the right to collect rent. Bennos v. Waderlow, 291 Mich. 595, 289 N.W. 267, 269 (1939) (“[I]t is settled law that, until after the expiration of the equity of redemption through foreclosure proceedings, a ......
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