Schrot v. Garnett

• Decision Date: 09 May 1963
• Docket Number: No. 34,34
• Citation: 370 Mich. 161,121 N.W.2d 722
• Parties: Leo S. SCHROT, Plaintiff and Appellant, v. George A. GARNETT, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 722

121 N.W.2d 722

370 Mich. 161

Leo S. SCHROT, Plaintiff and Appellant, v. George A. GARNETT, Defendant and Appellee.

No. 34.

Supreme Court of Michigan.

May 9, 1963.

No appearance for defendant and appellee.

Maurice D. Sharai, Highland Park, for plaintiff and appellant.

Before the Entire Bench.

BLACK, Justice.

To get his urgently supplicating client out of jail, the plaintiff attorney agreed with the client to pay certain of the latter's child support arrearages in the sum of $250. The agreement was made on strength of the client's promise to execute in favor of the attorney a mortgage of the client's home premises in the sum of $350. The amount of the mortgage, per agreement, was to be made up of the payment plus a counsel fee of $100.

The attorney paid the arrearages as agreed. The client, however, having been released from custody, refused to execute the agreed form of mortgage upon tender thereof to him for signature. To secure payment of the stipulated sum the attorney thereupon filed this bill to impress an equitable lien upon the defendant client's home premises. The bill duly alleged all facts requisite to equity jurisdiction, including total inadequacy of a remedy at law against defendant. The bill was duly taken as confessed upon entry of defendant's default; whereupon the trial chancellor dismissed the bill sua sponte. Plaintiff has appealed.

It was the judicial view below that plaintiff's remedy at law was adequate, a view with which we disagree. A right being shown which otherwise might appeal to equity's concurrent jurisdiction, and the legal remedy being established as inadequate, is by itself a sufficient invocation of such jurisdiction. For dependable discussion and clear exposition of this principle, see chapter 2, 1 Pomeroy's Equity Jurisprudence, 5th ed., §§ 216 et seq., pp. 366-391 headed 'Inadequacy of Legal Remedies,' and 19 Am.Jur. Equity, § 111, p. 116.

Upon de novo consideration it is ruled that plaintiff should have a decree in accord with the prayer of his bill. By failing to answer or move defendant has admitted all well pleaded allegations of the bill, including inadequacy of legal remedy, and so the only question is whether by the principles of equity plaintiff is entitled to the lien he seeks. The equities being all one way, and the rights of no other creditor of defendant being disclosedly involved or affected, the judicial answer should be affirmative. In Kachman v. Sago, 331 Mich. 662, 667, 50 N.W.2d 195, this Court quoted the following from Cheff v. Haan, 269 Mich. 593, 599, 257 N.W. 894:

'[E]quity from the...