Miskinis v. Bement

38 N.W.2d 897 | Mich. | 1949

In this foreclosure of a real estate mortgage the only issue presented is this: During what period of time should plaintiffs be allowed to recover interest on a sum of money found to be due on the mortgage loan? Plaintiffs, who are appellants, claim they are entitled to recover interest from May 18, 1942, but the trial court allowed interest at 5 per cent. per annum only from the date decree was entered herein, October 25, 1948. There is no controversy about the unpaid principal amount of the mortgage loan — $16,238.35. Much of the factual background of the instant case appears in our opinion in a former suit between these same parties. See Miskinis v. Bement, 301 Mich. 365. It is from the date rehearing was denied in that case (May 18, 1942) plaintiffs claim interest should be computed.

In January, 1941, plaintiffs made a usurious mortgage loan to one or both of defendants, which plaintiffs are foreclosing in the instant case. Plaintiffs' right to recover interest prior to the entry of decree herein is barred by the statute (CL 1948, § 438.52 [Stat Ann § 19.12]) governing in that respect usurious loans, unless prior to decree herein something occurred between the parties in consequence of which the action was purged of usury.

It is plaintiffs' contention that by our decision in the former case the transaction between these parties was purged of usury. This contention is not maintainable. Courts speak through their judgments and decrees. Michigamme Oil Co. v. Huron ValleyBuilding Savings Ass'n, 280 Mich. 12; Harnau v. Haight, 212 Mich. 66. In the former case between these parties the decree in the circuit court dismissed plaintiffs' bill of complaint. We affirmed that decree with the provision that our affirmance was "without prejudice to further proceedings incident to foreclosure of the land contract (as a mortgage) or chattel mortgage mentioned herein." In the earlier case the principal amount actually due from defendants to plaintiffs was not adjudicated nor was there any determination of plaintiffs' right to recover interest thereon. Even in the instant case, after allowing credit of $1,000 realized from foreclosure of a chattel mortgage which was a part of this same transaction, plaintiffs' prayer for relief is: "That the defendants Austin F. Bement and Evelyn Bement, his wife, be ordered and decreed to pay forthwith the indebtedness under said land contract, exhibit A, hereto attached. Upon the default in payment thereof, said land contract shall be foreclosed as a real estate mortgage;" and after payment of expenses of foreclosure, the balance received on the foreclosure be applied "toward the payment of the amount due and owing under said land contract."

We find nothing in the record which would justify a holding that the transaction between these parties was purged of usury prior to the circuit court's decree in the instant case, which provided for interest at 5 per cent. per annum on the amount due after date of the decree. The decree as entered in the circuit court is affirmed, with costs to appellees. The case is remanded for any appropriate future proceedings therein.

SHARPE, C.J., and BUSHNELL, BOYLES, REID, DETHMERS, BUTZEL, and CARR, JJ., concurred.