Maser v. Gibbons

Decision Date29 June 1937
Docket NumberNo. 90.,90.
Citation274 N.W. 352,280 Mich. 621
PartiesMASER et ux. v. GIBBONS et ux.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Proceeding by John J. Maser and wife against Edward L. Gibbons and wife. From an adverse judgment, defendants appeal.

Reversed, with directions.

Appeal from Circuit Court, Ingham County; Charles H. Hayden, judge.

Argued before the Entire Bench.

C. F. & E. T. Hammond and Henry L. Schram, all of Lansing, for appellants.

Shields, Ballard, Jennings & Taber, of Lansing (David R. Bishop, of Lansing, of counsel), for appellees.

BUSHNELL, Justice.

Defendant Edward L. Gibbons appeals from a judgment of $975.48 and costs entered upon plaintiffs' motion for summary judgment; judgment was not entered against Mrs. Gibbons.

Plaintiff's affidavit says:

‘That on June 16, 1928, Edward L. Gibbons and Minnie Gibbons of the city of Lansing, Michigan, conveyed to himself and his wife, Bess F. Maser, by warranty deed, premises described as: Lot 78 of the Plat of Chesterfield Hills No. 1, in the city of East Lansing, Ingham county, Michigan, a verified copy of said deed being attached hereto marked Exhibit ‘A,’ and made a part hereof; that said conveyance was made upon a valuable consideration then in hand paid by himself to Edward L. Gibbons in the form of a check in the amount of $6,254.59, on the American State Savings Bank of Lansing, Michigan, dated June 16, 1928, and which was later paid by said bank on June 23, 1928, a verified copy of said check being attached hereto marked Exhibit ‘B’ and made a part hereof; that under said warranty deed said defendants did covenant, grant, bargain and agree to and with the plaintiffs, their heirs and assigns, that at said time the said premises were free from all encumbrances whatever except a mortgage given to A. J. Nash, Administrator with the will annexed of the Estate of Frank A. Spragg, deceased, for $5,000.00, and the said defendants in said deed agreed that they would warrant and defend the said premises against all lawful claims whatsoever except said mortgage.

‘Affiant further says that upon investigation subsequent to June 16, 1928, he found that the State, county, city school and other taxes for the years 1926 and 1927, assessed against said premises, were unpaid and constituted a lien and an encumbrance thereon under the laws of the State of Michigan, by reason of which the defendants at the time of executing and delivering their warranty deed did commit a breach of their covenants and agreements, and particularly their covenant against encumbrances; that in order to discharge the lien and to protect he and his wife's title to said premises and prevent their being offered for sale pursuant to the tax laws of the State of Michigan, affiant paid said delinquent taxes to the County Treasurer as follows: 1926 taxes in the amount of $358.30 were paid on April 30, 1929; 1927 taxes in the amount of $361.75 were paid on February 27, 1930, the receipts showing such payments being attached hereto marked Exhibits ‘C’ and ‘D’ and made a part hereof; and that said affiant has demanded that said Edward L. Gibbons and Minnie Gibbons reimburse him for such expenditures but that said Edward L. Gibbons and Minnie Gibbons have neglected and refused to reimburse him, and that there is due and owing to the plaintiffs at the date of this notice with interest the sum of $970.43.

‘Affiant further says that he has consulted his attorneys in regard to this matter and is advised that there is no defense to said action, and that it is his belief that there is no defense to said action, and that if sworn as a witness he can testify competently to the facts herein stated as of his own knowledge, and that he makes these statements upon his own personal knowledge.'

Exhibits in support thereof are attached to the affidavit.

Defendants' affidavit of merits says:

‘That three or four years prior to the making of the deed set forth in the pleadings in this cause and referred to in the affidavit of said John J. Maser, said premises were sold on land contract by said defendants to one George Spanos;

‘That plaintiffs, two or three years prior to the execution of said deed had taken assignment of the vendees' interest in said contract as security for loans made by said plaintiffs to said George Spanos;

‘That shortly prior to the execution of said deed the plaintiffs agreed to loan said George Spanos sufficient moneys to pay said land contract in full, less the sum of $200.00, more or less, provided that the defendants would assign their vendors' interest in said contract and deed said premises to the plaintiffs; that said $200.00 deduction was made because said plaintiffs agreed to pay the taxes due on said premises;

‘That said plaintiffs then agreed to re-assign the vendees' interest in said contract to said Spanos;

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5 cases
  • Robertson v. N.Y. Life Ins. Co.
    • United States
    • Supreme Court of Michigan
    • June 29, 1945
    ...7 (1933). See, also, Dempsey v. Langton, 266 Mich. 47, 253 N.W. 210;McDonald v. Staples, 271 Mich. 590, 261 N.W. 86; and Maser v. Gibbons, 280 Mich. 621, 274 N.W. 352.' See, also, Terre Haute Brewing Co., Inc., v. Goldberg, 291 Mich. 401, 289 N.W. 192;Laughery v. County of Wayne, 307 Mich. ......
  • City of Detroit v. Eisele, 5
    • United States
    • Supreme Court of Michigan
    • April 26, 1961
    ...A summary judgment should not be entered where an issue as to a material fact is raised by the pleadings and affidavits. Maser v. Gibbons, 280 Mich. 621, 274 N.W. 352. Does plaintiff's counter-affidavit and pleadings create a material issue of fact which would preclude a summary Medical tre......
  • Eston v. Robert Brown, Ltd.
    • United States
    • Supreme Court of Michigan
    • December 21, 1938
    ...v. Szucs, 248 Mich. 672, 227 N.W. 666, 667. See, also, People's Wayne County Bank v. Harvey, 268 Mich. 47, 255 N.W. 436;Maser v. Gibbons, 280 Mich. 621, 274 N.W. 352. In this latter case we said [page 354]: ‘Rule 30, Michigan Court Rules (1933), is determinative in applications for summary ......
  • Am. Employers' Ins. Co. v. H. G. Christman & Bros. Co., 126.
    • United States
    • Supreme Court of Michigan
    • April 4, 1938
    ...30, § 7. See, also, Dempsey v. Langton, 266 Mich. 47, 253 N.W. 210;McDonald v. Staples, 271 Mich. 590, 261 N.W. 86; and Maser v. Gibbons, 280 Mich. 621, 274 N.W. 352. We are unable to agree with the conclusions of the trial court because we find: First. From the affidavits and depositions a......
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