220 Mich. 497 | Mich. | 1922
Defendants, Jerome Probst and Sarah E. Probst, are husband and wife. Mr. Probst and the plaintiffs had dealings in stock which resulted in loss. To pay a portion of the loss Mr. Probst on July 23, 1919, entered into a written agreement with plaintiffs, in which, to secure payment, he promised to cause to be conveyed to them, by deed with contract back, the homestead of Mrs. Probst. The deed was executed and acknowledged and the contract was signed by Mrs. Probst on July 19, 1919. It’is her claim that she was the first to sign the contract, that material alterations without her consent were made in both papers after she had signed them, and that her signatures were procured by fraud. Plaintiffs filed a bill for foreclosure. Mrs. Probst by cross-bill prayed that both papers be set aside for the reasons stated. The bill was taken as confessed by Mr. Probst for want of pleading. The trial court found the allegations of the cross-bill respecting such alterations to be true and decreed to Mrs. Probst the relief she prayed. Plaintiffs and Mr. Probst have appealed.
It is conceded by counsel that if material alterations of the papers were made as claimed the decree, as regards the relief afforded Mrs. Probst, must be affirmed. The defense put in evidence photographs, of the deed and contract which are said to show the papers as they were just after the signing by Mrs. Probst. A consideration of all the evidence and a comparison of the deed and contract in question with the photographs show beyond question that the alterations were made as claimed, and that the trial judge was right in saying that such photographs were •authentic and indisputable.
The bill of complaint sought decree against Mr. Probst for any deficiency that might arise upon sale of the claimed mortgaged premises, it being plaintiffs’ claim that the agreement between them was evidence
Had the facts warranted such action, the court in this proceeding might have decreed payment by Mr. Probst of the balance of the debt remaining unsatisfied “after a sale of the mortgaged premises.” 3 Comp. Laws 1915, § 12680, and cases cited in annotations. But there being contemplated no sale of the premises and hence no deficiency arising thereon, the court was without authority to enter the decree against Mr. Probst. See Johnson v. Shepard, 35 Mich. 115, where this subject is fully considered. As to him the decree is reversed.
The decree, as so modified, is affirmed. Mrs. Probst will recover against plaintiffs her costs in this court. Because of the failure of Mr. Probst to defend in the circuit court no costs are allowed him here.
