Goldberg v. Goldberg
| Citation | 295 Mich. 380,295 N.W. 194 |
| Decision Date | 10 December 1940 |
| Docket Number | No. 15.,15. |
| Parties | GOLDBERG v. GOLDBERG |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by Jeanette Goldberg against Morris Goldberg and Harry Goldberg for an injunction and to cancel certain deeds, mortgages and assignments. From a decree in favor of the plaintiff, Morris Goldberg appeals.
Decree reversed, and decree entered dismissing the complaint.Appeal from Circuit Court, Berrien County; William B. Brown, judge.
Argued before the Entire Bench.
Levinson & Levinson, of Chicago, Ill. (Clarence E. Butler, of Benton Harbor, of counsel), for appellant Morris Goldberg.
Charles W. Gore, of Benton Harbor, for appellee.
Plaintiff, Jeanette Goldberg, filed a bill of complaint against Harry and Morris Goldberg for an injunction and to cancel certain deeds, mortgages, and assignments.
Jeanette Goldberg and Harry Goldberg, one of the defendants, were husband and wife up to February 10, 1937, when Jeanette Goldberg was granted a divorce from her husband. In 1910, Harry Goldberg was the record owner of the premises in question, consisting of a small farm in Berrien county. On March 10, 1931, plaintiff and her husband, Harry Goldberg, mortgaged this property for $1,000. On January 12, 1937, Mr. and Mrs. Oehlhaffen, the assignees of the mortgage, threatened to foreclose the mortgage at its expiration in March, 1937, unless the 1934 and 1935 taxes were paid. On February 3, 1937, the Oehlhaffens were paid and the mortgage assigned to defendant Morris Goldberg a brother of Harry Goldberg, but the assignment was not recorded until February 27, 1937.
The divorce granted to plaintiff provided that Harry Goldberg convey the premises in question to plaintiff ‘free and clear of any and all mortgages, liens, taxes or any other encumbrance.’ The decree also provided: ‘It appearing, however, on the trial of said cause, that some doubt exists as to the present ownership of said premises, and the present condition of the title thereof, it is further ordered, adjudged and decreed that if plaintiff Jeanette Goldberg is divested of the title to said premises herein decreed to her, then in that event the said Harry Goldberg, defendant herein, shall pay to the said Jeanette Goldberg, plaintiff, in cash, the sum of $2,500 for the support and maintenance of the said Jeanette Goldberg, and the said Jeanette Goldberg shall have a lien on any and all real estate owned by the said defendant in the City of Chicago, County of Cook, State of Illinois, it appearing from the evidence that the only real estate owned by the said Harry Goldberg is the premises above described and the premises located in the City of Chicago as aforesaid.’
Morris Goldberg started foreclosure proceedings under his mortgage assignment on April 10, 1937, which proceeded to sale and sheriff's deed issued on July 6, 1937. But prior to the expiration of the redemption period, plaintiff filed her bill of complaint, the main purpose of which was to cancel the mortgage and subsequent assignments.
In the bill of complaint it is alleged that Harry Goldberg paid the mortgage with his own funds; and that Harry and Morris Goldberg, conspiring to cheat and defraudplaintiff of her rights and intending to deprive her of the ownership of this property, took the assignment of the mortgage in the name of Morris Goldberg instead of accepting from the Oehlhaffens a discharge of the mortgage to Harry Goldberg.
The trial court found that plaintiff sustained the allegations in her bill of complaint and entered a decree that the sheriff's deed to Morris Goldberg be set aside; that the mortgage dated March 10, 1931, has been fully paid and satisfied and is not a valid claim against the premises and discharged of record; and that plaintiff is the owner in fee simple by a perfect title against Harry and Morris Goldberg.
Defendant Morris Goldberg appeals and claims that the allegations of the bill of complaint are not supported by the evidence; that the findings and decree of the court are contrary to the evidence; and that plaintiff's failure to complain for one year and four months after the alleged fraud came to her knowledge precludes her from complaining now.
The record shows that on February 3, 1937, Harry and Morris Goldberg were at the office of Gleason and Knapp, real estate brokers in the city of Benton Harbor; that Harry called Mrs. Oehlhaffen and stated that he was going to pay off the mortgage and to bring down the papers. When the Oehlhaffens arrived at the office, $930 was paid to them and they executed an assignment to ...
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