James S. Holden Co. v. Applebaum
| Decision Date | 05 June 1933 |
| Docket Number | No. 111.,111. |
| Parties | JAMES S. HOLDEN CO. v. APPLEBAUM et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County, in Chancery; Arthur Webster, Judge.
Suit by the James S. Holden Company against Harry R. Applebaum, executor under the last will and testament of Isaac Applebaum, deceased, and others. From an adverse decree, named defendant appeals.
Affirmed.
Argued before the Entire Bench.Sempliner, Dewey, Stanton & Bushnell, of Detroit (Jason L. Honigman, of Detroit, of counsel), for appellant.
Wurzer & Higgins, of Detroit (John T. Higgins, of Detroit, of counsel), for appellee.
On May 1, 1925, Maurice Dreifuss contracted to sell certain real estate in the county of Wayne to Louis T. Applebaum. On November 7, 1927, Applebaum assigned his interest as vendee in the contract to his father, Isaac Applebaum. It was stated therein that the balance owing thereon was the sum of $9,959.08, with interest from June 1, 1927, ‘which the said assignee and grantee assumes and agrees to pay.’ On May 8, 1928, Dreifuss conveyed the premises to the plaintiff corporation by warranty deed, and at the same time assigned his interest in the land contract to it, covenanting therein that there was then due thereon the sum of $9,902.77. On the same day Dreifuss gave a written notice to Isaac Applebaum that he had transferred the land contract to plaintiff, and that payments would thereafter be made to it, and Isaac Applebaum at the same time signed a statement that the amount due on the contract assigned to him was the sum above stated. These instruments were delivered by Dreifuss to the plaintiff. Isaac entered into possession of the premises, collected the rents, paid the taxes, made repairs thereon, and continued to make monthly payments on the contract until the time of his death on May 30, 1928, and payments were made thereon by the executors for several months thereafter.'
On July 23, 1930, plaintiff filed its claim for the balance due on the contract with the commissioners on claims in the estate of the deceased, and on November 20, 1930, the commissioners filed their report disallowing the same, from which the plaintiff, on December 8, 1930, took an appeal to the circuit court for the county of Wayne, which is yet pending therein. While the claim was there pending, the attorneys for the estate, with the express intention of avoiding liability to the plaintiff, caused Louis T. Applebaum to execute a document on October 24, 1930, in which he purported to assign to Albert E. Smith, one of the defendants, for a consideration of one dollar, ‘the covenant in said assignment whereby the assignee assumes and agrees to pay the balance owing upon the land contract.’ Smith was at that time an attorney in the office of the attorneys for the estate. No notice of this assignment was given to the plaintiff.
On November 1, 1930, the plaintiff filed its bill of complaint herein, later amended, seeking foreclosure of the land contract and setting forth the facts above stated, except the assignment to Smith. It alleged therein, on information and belief, that Smith had an interest in the property, the nature and extent of which was unknown to it. It prayed therein for a sale of the premises and for a decree ordering the executors of the estate to pay to it any deficiency which might arise therefrom.
The executors answered, denying the right of the plaintiff to a decree for deficiency. Smith filed a disclaimer of any interest in the property. The bill was taken as confessed against Louis T. Applebaum and Maurice Dreifuss, who were made defendants. It appears that Abram W. Sempliner, one of the executors, then resigned.
After a hearing, the court found the amount due on the contract to be $11,049.67, and ordered Louis T. Applebaum and Maurice Dreifuss to make payment thereof within five days, and in default that the property be sold and that plaintiff have a personal decree against these parties for any deficiency, and ‘that the plaintiff...
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Bates v. Dana
...benefits of the agreement according to its terms and effects. Richardson v. Turner, 28 So. 160; Mead v. Randall, 71 N.W. 31; Holden & Co. v. Applebaum, 248 N.W. 882; Schaeffer v. Seller, 64 P.2d 1336; Bell Fleming's Exrs., 12 N.J.Eq. 13; Tayloe v. Thompson, 5 Pet. 369; Farmers & Merchants B......
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Bates v. Dana, 35542.
...agreement according to its terms and effects. Richardson v. Turner, 28 So. 160; Mead v. Randall, 71 N.W. 31; Holden & Co. v. Applebaum, 248 N.W. 882; Schaeffer v. Seller, 64 Pac. (2d) 1336; Bell v. Fleming's Exrs., 12 N.J. Eq. 13; Tayloe v. Thompson, 5 Pet. 369; Farmers & Merchants Bank v. ......
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Rubsam Corp. v. Gen. Motors Corp.
...a land contract was disallowed by the probate court for want of jurisdiction, and we held, under the authority of James S. Holden Co. v. Appelbaum, 263 Mich. 507, 248 N.W. 882, that the filing of the claim was not such an election of remedies as would bar an action to foreclose the land con......
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Hickey v. Mahon's Estate
...knowledge of the facts, indicate his choice between these inconsistent remedies.’ 20 C.J. p. 20.' See, also, James S. Holden Co. v. Applebaum, 263 Mich. 507, 511, 248 N.W. 882. Defendant relies upon Briggs v. Township of Ronald, 208 Mich. 603, 176 N.W. 434. This case well illustrates how an......