Gerasimos v. Wartell's Estate

• Decision Date: 20 March 1926
• Docket Number: No. 115.,115.
• Citation: 207 N.W. 919,234 Mich. 102
• Parties: GERASIMOS et al. v. WARTELL'S ESTATE et al.
• Court: Michigan Supreme Court

234 Mich. 102

207 N.W. 919

GERASIMOS et al.

v.WARTELL'S ESTATE et al.

No. 115.

Supreme Court of Michigan.

March 20, 1926.

Appeal from Circuit Court, Wayne County, in Chancery; Joseph A. Moynihan, Judge.

Bill in equity by Theodore Gerasimos and another against the estate of Moses Wartell, Harry Rosenthal, administrator, and others, wherein defendant named and another filed a cross-bill. Decree for defendants on cross-bill, and plaintiffs appeal. Further proof ordered.

Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ. John W. L. Hicks, of Detroit, for appellant.

Edmund M. Sloman, of Detroit (Everett H. Wells, of Detroit, of counsel), for appellees.

SHARPE, J.

On July 1, 1918, plaintiffs executed and delivered to Moses Wartell a note for $6,000, payable in three years, with interest at 6 per cent. To secure this note they executed a mortgage on certain real estate in the city of Detroit, which was duly acknowledged and recorded. Mr. Wartell died on December 21, 1921. Alleging that the mortgage had been paid in full, and that foreclosure proceedings were threatened, plaintiffs filed the bill herein, praying for a decree discharging it. The administrator of the estate and the widow, who was also made a defendant, answered, denying that the mortgage had been paid, and in a cross-bill prayed for its foreclosure. They were granted a decree, fixing the amount due at $4,247.75. The plaintiffs appeal.

It is plaintiffs' claim that they have not only paid the debt secured by the mortgage, but that they made payments thereon in excess of the sum due to the amount of $2,385.55. It is unfortunate that a settlement was not had between the parties during the lifetime of Mr. Wartell. The plaintiffs had no proof except the testimony of Theodore Gerasimos, the mortgagor, who produced a number of checks, drawn to Moses Wartell and indorsed by him or his wife, and receipts bearing his signature, and other evidences of payment. The signatures were admitted by defendants' counsel. Plaintiffs' counsel sought to show by the witness that these sums were paid upon the mortgage indebtedness. This proof was clearly inadmissible (3 Comp. Laws 1915, § 12553), and the court so held.

In our opinion, where there is proof of an indebtedness and proof of payments made to the creditor, without identification of the application thereof, it will be presumed that such payments were made to apply on such indebtedness. Harvey v. Quick, 9 Ind. 258;Frick v. Trustees of Schools, 99 Ill. 167. This presumption may be overcome by a showing that there were other dealings between the parties on which the payments might have been made. After identifying plaintiff's signature thereto, defendants' counsel offered in evidence an agreement entered into between Wartell and the plaintiff on June 17, 1918, a few weeks before the date of the mortgage, which recited that plaintiff had given to Wartell a bill of sale of a soda fountain outfit to secure two notes in the sum of $5,350, payable in 6 months, and provided that on payment of the notes the property should be retransferred to him. Defendants also sought to...