Garwood v. Burton

• Decision Date: 19 December 1933
• Docket Number: No. 144.,144.
• Citation: 265 Mich. 408,251 N.W. 564
• Parties: GARWOOD et al. v. BURTON et al.
• Court: Michigan Supreme Court

265 Mich. 408

251 N.W. 564

GARWOOD et al.

v.BURTON et al.

No. 144.

Supreme Court of Michigan.

Dec. 19, 1933.

Appeal from Circuit Court, Livingston County, in Chancery; Joseph H. Collins, Judge.

Suit by Thomas S. Garwood and another against Charles W. Burton and others. From the decree, plaintiffs appeal.

Affirmed.

Argued before the Entire Bench.Carl H. Stuhrberg, of Ann Arbor (Francis W. Schilling, of Ann Arbor, of counsel), for appellants.

C. Upton Shreve, of Detroit, and Shields & Smith, of Howell (John G. Libbers, of Detroit, of counsel), for appellee Charles W. Burton.

WIEST, Justice.

This is a bill to foreclose a land contract executed by plaintiffs as vendors and defendants Leith as vendees, and assigned by the vendees to defendant Burton, who assumed and agreed with the vendors and the vendees to make payment thereof. A previous land contract, under which defendants Leith were vendees, at a price of $10,500, was abrogated by mutual agreement because the vendees were unable to make performance, and therefore, in order to enable Mr. Leith to sell the property on a commission basis, the contract in suit was executed, fixing the purchase price at the inflated sum of $17,100, and reciting that $3,000 had been paid thereon by the Leiths. The purchase price and the recited sum paid were pure fiction, planned and intended to entrap an assignee of the vendees. Defendant Burton was caught and tied by assumption of the contract obligation. Mr. Burton made a payment on the contract, and this was split between plaintiffs and defendants Leith. Mr. Burton learned that the Leiths had not paid $3,000 on the contract, and took Mr. Leith to task. Mr. Leith confessed, and turned over to Mr. Burton a note given him in the deal by plaintiffs, and upon which there was $3,000 to become due. Mr. Burton asked the court to set off against the amount due on the contract the amount of plaintiffs' note, and the court so decreed. Plaintiffs review by appeal, and claim the note was signed on Sunday; was without consideration; had words added after they signed it; and that defendant Burton was not a purchaser in good faith and in due course.

The note bears a secular date, and, even if signed on Sunday, is valid in the hands of Mr. Burton if he acquired the same in good faith before maturity and for a valuable consideration. Vinton v. Peck, 14 Mich. 287. The consideration for the note between plaintiffs and defendants Leith was Mr. Leith's services in acting...