8 N.W.2d 156 | Mich. | 1943
On April 6, 1925, plaintiffs made a loan of $6,000 from J.E. Burroughs and gave him a note and mortgage payable in five years with interest at the rate of 7 per cent. per annum payable semiannually. On the following day, the mortgage was recorded and $3,500 was advanced on the loan; $1,000 was paid later in the month, and $1,500 the following month. Burroughs added to the last payment the sum of $13.32 in order to pay unearned interest during the period in which the last two payments were withheld. Plaintiff J.N. Leith on the day that the mortgage was given wrote a check for $31 to a finance company. Burroughs was one of its officers and it acted as his agent. The check showed the indorsement of the county treasurer. It is quite evident that it paid the mortgage tax and recording fee. If the amount exacted from the mortgagors included interest at 7 per cent. per annum plus $31, the loan would be usurious. Union Guardian Trust Co.
v. Crawford,
Even assuming that there was some merit in plaintiffs' claims that the judge erred in his factual finding as to the payment of the mortgage tax, and also in his finding of law in regard to estoppel, questions we need not discuss, if he reached the correct conclusion, the proper administration of law does not require a reversal. Eames v. Barber,
Plaintiffs contend even if the procedure set forth in section 14403 was not the proper one to use in the instant case, or if section 14403 would be unconstitutional if applied to a contested case of this nature, nevertheless, defendant appellee did not perfect a cross appeal and, therefore, cannot renew in the appellate court the objection made in the trial *512 court. This is not a case where the question was not raised in the trial court. While it would have been proper practice for defendant to perfect a cross appeal, the question of the propriety of the procedure under section 14403 became of prime importance. The trial court advised counsel that the question should be raised on general appeal. Appellants even now ask that we order the mortgage discharged in accordance with the procedure under section 14403. Defendant filed a motion to dismiss the appeal on account of the inapplicability of section 14403 to the facts in this case, and the further claim that if the statute could be thus applied, it would be unconstitutional. The plaintiffs answered that the question should be considered only on the appeal and not on the motion to dismiss, that these were issues to be raised and decided in the regular appeal. We denied the motion but without prejudice. In view of the way that the question arose in the trial court, where the court asked that it be referred to this court, the further fact that appellants ask relief under this act, and inasmuch as the question has been thoroughly briefed by both parties, we shall regard it as properly before us, the same as if a belated cross appeal had been asked for and granted.
Appellants claim that the question is settled in Michigan by the case of McKenna v. Wilson,
In Massachusetts, the court passed upon a somewhat similar statute which provided for the discharge of a mortgage when a mortgagor had been in possession of the premises for over 20 years and made no payment on the mortgage. The court stated that the statute was to provide a simple and easy way to remove this kind of incumbrance from the record in cases where there was no controversy, and that when there was such controversy, other *514
procedure should be used. McMahan v. McMahan,
The judgment is affirmed, with costs.
BOYLES, C.J., and CHANDLER, NORTH, STARR, WIEST, BUSHNELL, and SHARPE, JJ., concurred.