Meyers v. Ermolik, 8.
| Decision Date | 06 April 1942 |
| Docket Number | No. 8.,8. |
| Citation | 301 Mich. 284,3 N.W.2d 276 |
| Parties | MEYERS et ux. v. ERMOLIK et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Interpleader proceeding by Harold W. Meyers and Anne Meyers, his wife, against Matilda Ermolik, special administratrix of the estate of John B. Smitting, and executrix and residuary legatee under the will of John B. Smitting, deceased, and William Henry Caswell and Dorothy C. Caswell. The first-named defendant filed a cross-bill. From the decree, the first-named defendant appeals.
Affirmed as modified.Appeal from Circuit Court, Wayne County, in Chancery; Frank Day smith, judge.
Before the Entire Bench, except WIEST, J.
Edward A. Elsarelli, of Detroit (S. Theodore Kotelly, of Detroit, of counsel), for appellant Matilda Ermolik.
Caswell & Pacernick, of Detroit (Frank W. Atkinson, of Detroit, of counsel), for appellees William, Henry Caswell and Dorothy C. Caswell.
Plaintiffs filed their bill in the nature of interpleader, alleging that on or about May 7, 1938, they entered into a contract to purchase certain premises in the City of Detroit from John B. Smitting, since deceased, defendant Ermolik being the executrix under his will, and that the said Smitting represented the property so purchased to be free and clear from all incumbrances. The bill further alleged that since the death of said Smitting, payments under the contract had been made to defendant Ermolik as executrix. Also, that defendants Caswell were claiming that on May 7, 1932, the said Smitting executed a promissory note in the amount of $8,400 to Clara N. Caswell, and gave as security therefor a mortgage covering the premises in question, which mortgage was recorded on or about August 23, 1936, and subsequently assigned to defendants Caswell by an instrument dated August 30, 1939.
The bill also alleged that thereafter, on September 23, 1939, defendants Caswell commenced foreclosure of said mortgage by advertisement.
Continuing, the bill alleged that defendant Ermolik was insisting that she was entitled to collect the proceeds of the land contract, and that the mortgage from Smitting to Caswell, having been obtained by fraud and deceit practiced upon Smitting in his lifetime, was null and void; that defendant Ermolik had notified plaintiffs to make the payments becoming due under the land contract to her, whereas defendants Caswell had notified plaintiffs to the contrary.
The bill concluded with a payer that the court adjudicate the relative equitable standing of the land contract and mortgage; that defendants be interpleaded so that their respective claims and demands might be adjusted; that the Caswells be restrained from continuing with the foreclosure of the mortgage during the pendency of the suit; and that they have leave to make payments becoming due under the contract to the court, to be disbursed subject to the order of the court upon determination of the issues involved.
Defendant William Henry Caswell answered, asserting, among other things, that plaintiffs had actual knowledge of the existence of the mortgage prior to execution of the land contract. He denied that the had any knowledge of the contract at the time of recording the mortgage, denied fraud in the execution thereof, and claimed that he and defendant Dorothy C. Caswell were entitled to receive the payments under the contract. The answer terminated with a ‘prayer’ that the temporary injunction be dissolved and that he be permitted to proceed with the foreclosure of the mortgage and that,
Defendant Ermolik filed an answer, admitting the material allegations of plaintiffs' bill of complaint. She denied the execution of the mortgage by her decedent, or in the alternative, that if it was executed by him, such execution was obtained by fraud and subterfuge. She also filed a cross-bill, praying that the mortgage in question be found to be null, void and a cloud on the title, and that the same be cancelled and said cloud removed. The answer of defendant William Henry Caswell thereto affirmed the validity of the mortgage.
Defendant, Dorothy C. Caswell, also answered plaintiffs' bill of complaint as well as the cross-bill of defendant Ermolik.
After hearing, the court entered a decree finding that defendant Ermolik had failed to sustain her charges of fraud in the execution of the note and mortgage and that the same was a valid lien against any interest the estate of John B. Smitting might have in the premises; and that plaintiffs were innocent purchasers, for a valuable consideration, without notice of the existence of the mortgage. The decree dismissed the cross-bill of defendant Ermolik, found the amount due on the mortgage to be $8,400, with interest from May 7, 1937, or a total of $10,409.55 to August 13, 1940, the date of the decree, found the land contract to be superior to the mortgage, and the balance due on said contract to be $7,544.52 as of the date of the filing of the bill of complaint. The decree further provided that all payments made to the clerk of the court, prior to and subsequent to the entry of the decree, should be delivered to defendants Caswell at the expiration of the redemption period in the event defendant Ermolik failed to redeem; and, that in the event that no such redemption was made, upon the expiration of said period, defendant Ermolik, or her successor, should assign said contract to defendants Caswell; and that upon payment of the balance found by the court to be due under the contract, plaintiffs should have a conveyance of the premises from defendants.
From the decree so entered, this appeal is taken.
It is first claimed by appellant that the court was without...
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