Kapelovitch v. White
| Decision Date | 03 April 1925 |
| Docket Number | No. 90.,90. |
| Citation | 230 Mich. 427,203 N.W. 134 |
| Parties | KAPELOVITCH v. WHITE et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County, in Chancery; Harry J. Dingeman, Judge.
Suit by Hyman Kapelovitch against Ada White and another. Decree for defendants, and plaintiff appeals. Affirmed.
Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Frederick S. Baker, of Detroit, for appellant.
Eugene D. Kirky, of Detroit, for appellee White.
Harry Widre, pro se.
Plaintiff, claiming to hold by assignment a land contract, in which his brother-in-law, Harry Widre, is vendee, and defendant, Ada White, vendor, filed the bill herein to be relieved from a forfeiture and granted specific performance.
He makes no tender in court of the amount due on the contract and shows no ability to pay, but expresses the hope that, if given time, he can sell and pay what is due. His bill was dismissed in the circuit, and, by appeal, we are asked to grant him relief. Two questions of fact are presented. Was there a bona fide assignment of the contract? If so, was notice of the assignment given the vendor or her agent?
We are impressed that plaintiff is playing for time in behalf of Widre, and has no pecuniary or real interest in the outcome of this suit, and that notice of the assignment was not given. This decides the case, but leaves the reasons for reaching the conclusions to be given.
It seems that under a previous forfeited contract for the same premises, an adjustment was reached January 31, 1922, and this contract then executed, with a credited payment thereon of $3,000, leaving a balance of $7,200 to be paid, with interest, in 16 months. Plaintiff and Widre claim that August 14, 1922, Widre assigned to plaintiff his interest in the land contract, in consideration of $2,000 due plaintiff for services and a note then given for $1,500.
No one witnessed the claimed assignment. At the time it is claimed the assignment was made, Widre and his wife were having domestic differences, which culminated in the filing of a bill for divorce by the wife nine days after the assignment, and of lis pendens on the property some months later.
After the alleged assignment, and up to the time of notice of forfeiture, Widre was active in trying to sell the property.
Widre's brother, Samuel, commenced suit against him by attachment, upon this and other property in May, 1923, and Harry moved to dissolve the levy, and in an affidavit in support of his motion, dated July 27, 1923, claimed to be the owner of the property. In January, 1923, Widre placed this property, together with other property he owned, in the hands of a licensed real estate broker to sell, fixing the price on the land in suit at $13,000. In March, 1923, Widre listed the property for sale as his own with another real estate broker. Negotiations were carried on by Widre with various parties looking toward a sale. One such proposed sale went to the point of a preliminary contract, which was signed by plaintiff, but was never completed. Plaintiff had the property listed on the assessment roll in his name and paid some taxes.
Listing the property on the assessment roll and payment of a part of the taxes, so neatly joins with Widre's scheme to make it appear that Kapelovitch was owner that we cannot consider such acts as decisive. We are not favorably impressed with the testimony given by Widre.
When the interest on the contract was due in January, 1923, Harry Widre and his sister, the wife of plaintiff,...
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...the assignee. 6 C. J. S. 1164; Farr v. Land Co., 188 F. 10; Fewell v. New Orleans, etc., R. R. Co., 144 Miss. 319, 109 So. 843; Kapelovitch v. White, 203 N.W. 134; 505 and 506, Code of 1930. The assignee is bound by every step taken or action had in regard to the suit in the Circuit Court o......
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...to it, and notice thereof to defendant, in accordance with the covenant it contained. So far as applicable here, Kapelovitch v. White, 230 Mich. 427, 203 N. W. 134, cited by plaintiff, is confirmatory of that view. Plaintiff's second reason for reversal is that, after the summary proceeding......