Polokoff v. Vebb, 111.

• Decision Date: 10 April 1924
• Docket Number: No. 111.,111.
• Citation: 226 Mich. 541,198 N.W. 194
• Parties: POLOKOFF et al. v. VEBB.
• Court: Michigan Supreme Court

226 Mich. 541

198 N.W. 194

POLOKOFF et al.

v.VEBB.

No. 111.

Supreme Court of Michigan.

April 10, 1924.

Appeal from Circuit Court, Wayne County, in Chancery; Theodore J. Richter, Judge.

Suit by Harry Polokoff and another against Jan Vebb. Decree for defendant, and plaintiffs appeal. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Maurice Miller and Howard H. Campbell, both of Detroit, for appellants.

Moscowitz, Goldstick & Goldstein and Joseph B. Beckenstein, all of Detroit, for appellee.

SHARPE, J.

On February 21, 1921, plaintiffs, for an expressed consideration of ‘one dollar and other valuable considerations,’ assigned to defendant their interest as vendees in a land contract entered into by them on August 2, 1920, for the purchase of certain real estate in Detroit. It is their claim that this assignment was made as security for a loan of $500 then made to them by defendant. Alleging that this sum has been repaid and that defendant refuses to reassign the contract to them, they bring this suit to compel him to do so. The defendant, answering, avers that he made an absolute and unconditional purchase of plaintiffs' interest in the contract. The trial court entered a decree dismissing the bill, from which plaintiffs appeal.

‘The burden of proof is upon a plaintiff who asserts that a deed absolute upon its face is in fact a mortgage to establish his claim by clear, irrefragable and most convincing proof.’ Brennan v. Finn, 217 Mich. 584, 585, 187 N. W. 353, 354.

Had the real consideration for this assignment been expressed therein, instead of $1, etc., this suit would doubtless have been avoided. There is proof tending to support plaintiffs' claim, but it is met by seemingly stronger proof opposing it. Two witnesses accompanied defendant to plaintiffs' home at the time the assignment was executed. The conversation was carried on in the Russian language, with which all the parties were familiar. Alexander Barnett, one of the witnesses, testified that he explained the nature of the writing to plaintiffs.

‘I told them that they are signing this paper; it means assigning the contract to Mr. Vebb. * * * They said, ‘We know.”

Both he and Abraham Friedman, the other witness, testify that nothing was there said about a $500 loan or anything to indicate that the assignment was being taken as a security. The contract property consisted of a parcel of land, on which was erected a block of stores, with a public hall in the second story. Defendant had theretofore been collecting the rentals on this property for plaintiffs under a lease agreement made between them. The checks therefore were as a rule made payable to plaintiffs. One of the tenants, Arthur Storm, testified that he made his check for the payment due February 1st to plaintiffs, but that ‘previous to March’ Polokoff ‘came and introduced Mr. Vebb as my new landlord. * * * He told me to make checks to Mr. Vebb.’ Extensions of leases were thereafter granted, and new leases made by defendant, with plaintiffs' knowledge, if not assent.

The contract price was $33,600, of which $3,000 was paid in cash and an equity in other property accepted as payment of $5,700. The balance was to be paid ‘in quarter annual installments of six hundred dollars ($600) or more each.’ Plaintiffs, three days after their purchase, sold fixtures and merchandise included therein for the sum of $3,000. It is undisputed that...