217 Mich. 584 | Mich. | 1922
To secure a loan of $100, plaintiff conveyed certain land to defendant. The conveyance was in the form of a warranty deed. Shortly thereafter another loan was made to plaintiff by defendant on said security. Later, to redeem the property from sale on execution and to pay taxes, defendant advanced upwards of $2,000, and claims that the said deed given as security was then returned to plaintiff and by him then delivered to defendant as a deed. Plaintiff claims there was no such change in the character of the instrument and filed this bill offering to pay the amount found to be due, seeking an accounting and to have the instrument which was recorded as a deed decreed to be a mortgage and to have title restored to him. Defendant claims that when the first loans were made he did not know of the execution sale, and that the later advances were made upon the understanding that he was to own the property absolutely, subject to an oral agreement between the parties that plaintiff might have the right for three months to sell the property, any excess arising from the sale to be divided between the parties. This the plaintiff denied. The controversy must be determined in the main upon the contradictory evidence of the parties themselves. There was testimony of other witnesses, principally as to. value of the land, in which, too, there is a lack of harmony. The plaintiff was decreed the relief prayed. Defendant in addition to the amount found to be due him at the date of the decree, $3,183, was allowed an attorney fee of $250. Both parties 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. McArthur v. Robinson, 104 Mich. 540; Frolich v. Aikman, 194 Mich. 569; McMillan v. Bissell, 63 Mich. 66. And it was said in Case v.
A point in defendant’s favor is that the total of his advances approached the value of the property. Schmidt v. Barclay, 161 Mich. 1. And it may be that when the first loans were made defendant did not know of the execution sale. But when the later advances were made, he was interested to the amount of the earlier loans, and we may consider the fact that defendant is an attorney at law of business experience as bearing upon the question of his taking an absolute deed in the manner claimed.
Upon a careful consideration of all the evidence, we think the defendant has not sustained the burden of proof in respect to his claim that the deed for security was later changed in character, and we are aided by the opinion of the trial judge who saw the witnesses and heard their testimony. And see Cornell v. Hall, 22 Mich. 377.
The plaintiff has made a case for equitable relief. The allowance of an attorney fee of $250 is eliminated, and the decree, as so modified, is affirmed, without costs.
