Wartemberg v. Spiegel

• Decision Date: 26 February 1875
• Court: Michigan Supreme Court
• Parties: Dorothea Wartemberg v. Frederick Spiegel

31 Mich. 400

Dorothea Wartemberg v. Frederick Spiegel

Supreme Court of Michigan

February 26, 1875

Submitted on Briefs January 29, 1875.

Appeal in Chancery from Wayne Circuit.

Decree reversed, and decree entered complainant in this court, with the costs of both courts.

Chipman Dewey & Hawes and Henry M. Cheever, for complainant.

Kane & Hibbard, for defendant.

Cooley J. Graves, Ch. J., and Campbell, J., concurred. Christiancy J., did not sit in this case.

OPINION

Cooley, J.:

The purpose of this suit is to have a mortgage by complainant to defendant decreed to be given up and cancelled, on the ground that it was obtained by fraud. The mortgage bears date November 20, 1872, and it appears that for a short time previous to this the defendant and Charles Wartemberg had been in partnership in a grocery and provision store, and defendant had just sold out to Charles his interest. Complainant, according to her account, was ignorant of the negotiations between Charles and the defendant, and she alleges that the latter came to her and obtained the mortgage by claiming to own everything in the store, and threatening to turn Charles off and not allow him any participation in the business or profits unless the mortgage was given. Defendant, on the other hand, avers that when he went into partnership with Charles, it was at the solicitation of complainant, who promised that he should not lose by it, and that she would make good her promise by mortgage security if necessary; that after agreeing with Charles upon a sale, he went privately to complainant, and told her that he must have security for the purchase price; that she expressed a willingness to give it, and they both went to the office of justice Stoll, who prepared a note and mortgage for $ 950, which was the amount figured up by Charles as payable to defendant; and that complainant then executed them, telling him not to let Charles know about them, for fear of making trouble in the family, and that he promised not to do so, and further promised if he could obtain from Charles an endorsed note for the amount, these papers should be surrendered; that he told justice Stoll not to have the mortgage recorded for some days, in order to give Charles an opportunity to make the securities, but not getting an endorsed note from him, the mortgage was retained and is insisted upon.

We are satisfied from the defendant's own statement, that this woman has been wronged. Passing by the fact that a mortgage to secure him on a sale to Charles, could not be considered as within the promise he claims she made him that she would secure him against loss by Charles in the partnership, all the circumstances attending the obtaining of the mortgage, as they are stated by himself, are suspicious, and tend very strongly to show that complainant was being deceived. No reasonable excuse is given for going to her without the knowledge of Charles, and under circumstances of secrecy, to obtain security for Charles' obligation, and her first remark, when he met her the day before obtaining the mortgage and showed her a statement from Charles that a certain sum was to...