Plaintiffs brought this suit to declare a deed and land contract back a mortgage, to restrain its forfeiture as a land contract, and, upon a claim of usury, to have the amount of the debt adjusted. Defendants filed cross-bill for foreclosure of the contract. The court held the transaction a mortgage, the loan usurious, found the debt at the sum of $8,200, allowed defendants interest at six per cent. per annum, and decreed foreclosure as a mortgage. Defendants appealed.
The deed and contract were executed and delivered simultaneously. Neither made any mention of mortgages outstanding of some $13,000. Each warranted fully against incumbrances. There was no evidence that the transaction was intended as an actual sale and resale. Eliminating the incompetent *Page 33
testimony of plaintiffs as to conversations with Rosen, the testimony is conclusive, especially that of Rosen's agent, Cohen, who closed the transaction for his principal, that the instruments were taken as security. They constituted a mortgage. Clark v. Landon,
The contract price was $10,000. Rosen sent Cohen $8,200 to pay plaintiffs. Plaintiffs admitted they received that sum, and claimed they got no more. Cohen proved no more. He attempted to prove an additional $1,000, for which he produced a check, but the bank records demonstrated it was part of the $8,200. The testimony shows the loan to have been usurious.
The decree is affirmed, with costs to plaintiffs, including mortgage tax paid by them, which this court required to be paid as a condition precedent to consideration of the case.
WIEST, C.J., and BUTZEL, CLARK, McDONALD, POTTER, SHARPE, and NORTH, JJ., concurred. *Page 34