Gerasimos v. Wartell

• Decision Date: 04 December 1928
• Docket Number: Nos. 91,92.,s. 91
• Citation: 222 N.W. 211,244 Mich. 588
• Parties: GERASIMOS et al. v. WARTELL et al. (GREENBERG et al., Interveners). ELLISON v. LIFSHITZ et al.
• Court: Michigan Supreme Court

244 Mich. 588

222 N.W. 211

GERASIMOS et al.

v.WARTELL et al. (GREENBERG et al., Interveners).

ELLISON

v.LIFSHITZ et al.

Nos. 91, 92.

Supreme Court of Michigan.

Dec. 4, 1928.

Cross-Appeal from Circuit Court, Wayne County, in Chancery; Ray Hart, Judge.

Separate suits by Theodore Gerasimos and others against Annie Wartell, administratrix of the estate of Moses Wartell, deceased, wherein Nathan Greenberg and another and Anthony Ellison separately intervened, and wherein Annie Wartell as administratrix de bonis non of the estate of Moses Wartell was substituted as defendant at the death of the administrator, and by Anthony Ellison against Hyman Lifshitz and others, wherein certain defendants filed cross-bills. From the decrees, Anthony Ellison appeals, and Hyman Lifshitz and others cross-appeal, the cases being consolidated and heard together. Affirmed.

Argued before the Entire Bench.

Potter, J., dissenting. Brooks & Colquitt, of Detroit (Edmund E. Shepherd, of Port Carling, Ont., Canada, of counsel and on the brief), for Anthony Ellison.

Campbell, Bulkley & Ledyard, of Detroit (Harold R. Smith, of Detroit, of counsel), for Hyman Lifshitz, Nathan Greenberg, Ben Friedman, and the People's State Bank.

POTTER, J.

Theodore Gerasimos once owned the property in controversy. June 19, 1918, he mortgaged it to William Darmstaetter. November 29, 1918, he gave a second mortgage thereon to Moses Wartell to secure a note dated July 1, 1918. Mr. Wartell died December 21, 1921. Gerasimos filed a bill to discharge the Wartell mortgage. Decree was found for defendants in the sum of $4,247.75. Upon hearing in this court because of the condition of the account between the parties, it was suggested a settlement be made, but, if not made, this court would order further proof taken to be returned to it. Gerasimos v. Wartell's Estate, 234 Mich. 102, 207 N. W. 919. No settlement was reached. Additional testimony was taken and returned, whereupon the decree of the trial court was affirmed, with costs, December 8, 1926. Gerasimos v. Wartell's Estate, 237 Mich. 1, 211 N. W. 29. In the meantime Harry Rosenthal, administrator of the estate of Moses Wartell, died November 13, 1923. No suggestion of the death of the administrator was made on the record as provided by section 12385, Compiled Laws 1915, but Annie Wartell was appointed administratrix de bonis non by the probate court and filed an answer and cross-bill asking for the foreclosure of the mortgage. By plaintiff's answer to the cross-bill in that suit, he admitted the death of Moses Wartell and that Annie Wartell was administratrix of the estate. January 18, 1928, an order was made and filed substituting Annie Wartell as administratrix de bonis non of the estate of Moses Wartell, deceased, as defendant and cross-plaintiff in place of Harry Rosenthal, deceased. No enrollment of the case was had. A sale of the premises was made by a circuit court commissioner January 29, 1925. The case was then pending in this court. The circuit court of Wayne county, though the case was in this court, entered an order confirming the sale of February 2, 1925.

The property was purchased at foreclosure sale by Greenberg and Friedman, who, March 17, 1927, conveyed their interest to Hyman Lifshitz. None of these proceedings involve the first mortgage from Gerasimos to Darmstaetter, who was not joined as a party in the cause. It was not necessary that he be joined.

Before the institution of the suit which reached this court in the cases above cited, a separate chancery proceeding was commenced December 14, 1922, by which Gerasimos attacked the Darmstaetter mortgage. Darmstaetter filed an answer and cross-bill to foreclose. This cause was at issue before the suit involving the second mortgage was started. A decree was granted on the cross-bill November 6, 1926, and the lands and premises covered thereby sold in pursuance of the foreclosure decree by a circuit court commissioner of Wayne County, and a commissioner's deed of the premises executed January 5, 1927. Neither Wartell nor the personal representative of his estate were parties to this suit.

Plaintiff Anthony Ellison March 23, 1927, obtained a quitclaim deed of the premises from Gerasimos. March 24, 1927, Darmstaetter and wife assigned the real estate mortgage given by Gerasimos to them which had been foreclosed, together with the decree of foreclosure, to Ellison. March 24, 1927, Darmstaetter and wife quitclaimed to Ellison, and May 7, 1927, executed and delivered to Ellison another quitclaim deed to correct the description of the premises.

June 7, 1927, Ellison filed this bill of complaint alleging Darmstaetter had not been made a party to the proceedings to foreclose the Wartell mortgage, defendants Greenberg, Friedman, and Lifshitz were in possession of the premises, he had applied to them for an accounting, their possession was illegal, they refused to account, were collecting the rents and profits, Lifshitz had mortgaged the premises to the People's State Bank for $11,500, and praying an accounting for the rents and profits and a determination of the amount due on the second mortgage, that defendants be required to accept the money due on the second mortgage from plaintiff, the foreclosure sale made under the decree in the foreclosure proceedings of the second mortgage be set aside, and that possession of the premises be delivered up to him upon payment of the amount due upon the second mortgage. The officer could not obtain service on defendants, other than the People's State Bank, of the summons issued and so made return. July 12, 1927, an order of appearance and publication was entered. June 15, 1927, the People's State Bank entered its appearance, and July 2, 1927, filed an answer therein. August 30, 1927, the defendants Greenberg, Friedman, and Lifshitz appeared and answered. January 19, 1928, Lifshitz filed a separate cross-bill. January 20, 1928, plaintiff Ellison filed an answer to the cross-bill of the defendant Lifshitz. August 4, 1927, Loupinas and Flambouras, tenants of the premises, filed an answer and cross-bill in the nature of interpleader, and an order was made in the suit that they should pay the rent into court, and thereafter similar orders were made from time to time. The case being at issue was tried, and January 20, 1928, plaintiff filed 34 requests for findings of fact and law. January 28, 1928, a decree was signed by the trial court dismissing plaintiff Ellison's bill of complaint, finding him the owner of the Darmstaetter mortgage, that there was due thereon $15,392.50 with interest at 5 per cent. from March 24, 1927, giving defendants the right to redeem therefrom on payment of such sum, dismissing the cross-bill of the tenants, directing the payment by the clerk of the sums by them paid into court to defendant Lifshitz. In event an appeal was taken Lifshitz was to file a $3,000 bond to comply with the order of this court so far as it might affect the rentals from the property, and plaintiff Ellison and defendants People's State Bank, Nathan Greenberg, Ben Friedman, and Hyman Lifshitz appeal.

January 11, 1928, a motion to enroll nunc pro tunc the second mortgage foreclosure case was filed. On January 18, 1928, plaintiff Ellison petitioned to intervene in this proceeding. January 18, 1928, Gerasimos filed an answer to the motion to enroll nunc pro tunc the proceedings to foreclose the second mortgage. January 18, 1928, an order was made substituting Annie Wartell, administratrix de bonis non of the estate of Moses Wartell, deceased, and Edward F. Stein, sheriff, as defendants, respectively, in the place and stead of Harry Rosenthal, deceased, and George A. Walters, and for the enrollment of the decree nunc pro tunc as of December 7, 1924, and permitting Nathan Greenberg and Ben Friedman to intervene. December 7, 1924, was Sunday. January 23, 1928, plaintiff Ellison, by order, was permitted to interplead in the matter of the hearing of the motion for entry of an order nunc pro tunc in the second mortgage foreclosure case coming on for consideration, notwithstanding January 18, 1928, the order authorizing the enrollment of the cause nunc pro tunc had been made. February 7, 1928, plaintiff Ellison filed a petition in the case relating to the foreclosure of the second mortgage to set aside the sale made for the irregularities set forth in his petition. February 20, 1928, Greenberg, Friedman, Lifshitz, and the People's State Bank moved to intervene, and March 5, 1928, an order was entered permitting intervention by the parties last above named; and on the same date an order was entered permitting plaintiff Ellison to intervene, and denying the prayer of his petition to set aside the decree and sale made in pursuance of said decree and to set aside the order nunc pro tunc as of December 7, 1924, and denying his right to redeem from the second mortgage foreclosed by said decree and sale; whereupon on March 23, 1928, plaintiff Anthony Ellison filed a claim of appeal. The cases here have been consolidated and heard together.

If plaintiff Ellison took and held the title to the premises by deed as security for money paid and advanced by him to Gerasimos, the deed might be a mortgage and as such subsequent to the second mortgage under which defendants claim. If the deed conveyed the title absolutely to Ellison, he stood in the place and stead of Gerasimos, and had a right, under the statute, even though the sale under the second mortgage was regular, to redeem from such sale at any time within six months after the sale of the premises under the decree of foreclosure of the second mortgage affirmed by this court. After the expiration of the six months' period, he had an equitable right to redeem if the sale on the second mortgage was irregular. 42 C. J. 390.

The foreclosure sale under the second mortgage was made while the cause on appeal was pending in this court.

When an appeal is taken, the case cannot...