Raffel v. Epworth
107 Mich. 143
Mich.
1895
Check Treatment
MoNtgomerv, J.

This suit was instituted to foreclose a mortgage for $350 given May 13, 1893, and payable August 2, 1893, according to the terms of an accompanying note. The bill was filed September 15, 1893. The defendant set up original matter in her answer, and ■asked for affirmative relief. The facts set up1 in the ■answTer as constituting a defense are that the defendant was the owner of 40 acres of land in the township of Romulus, subject to two mortgages, which aggregated in amount $350; that on the 13th of May, 1893, she agreed with the complainant Frederick Raffel to exchange this farm for a house and lot in Springwells, and, to make the exchange even, gave the mortgage in question as an indemnity against the mortgage on the farm; that said complainant represented to her that the lot which he was trading included all the land between the two fences then forming the inclosure in which the house stood, and that it was 00 feet front by 150 feet deep; whereas the land conveyed consisted of a single lot 30 feet by 150. The defendant also sets up that the house and lot were subject to a life lease, and that this fact was concealed from her at the time. It is also' contended that complainants were not entitled to foreclose until they had been compelled to pay or had paid the mortgage on the farm.

The case is not altogether clear on its facts. There is ample room for finding that defendant did expect that ■she was to receive 00x150 feet of ground, and there is *145direct testimony, aside from her own, that the complainant represented the property to her as of these dimensions. On the other hand, such representations are strenuously denied, and the fact appears that the conveyance was of a single lot, which, according to the abstract, was but 80 feet in width, and it would appear that it is not common to plat lots in Detroit or its suburbs as wide as 60 feet; but the most significant testimony is that of Mr. Ohms, the attorney who drafted the deed to defendant, which is to the effect that there was a sale of personal property to the complainant at the same time, and, after the deed and mortgage were drafted, the papers were left with him, to be delivered when complainant should pay $170, the purchase price of the personal property. A few days after the deed was signed, and before payment of the $170, the parties met in his office, and defendant there stated that she supposed that the lot had a frontage of 60 feet. He (Ohrns) at once called complainant’s attention to this claim, and complainant insisted that he had conveyed just what he agreed to. Mr. Ohms then stated to the defendant that, if there was any error, then was the time to- correct it. She then announced that she was satisfied, and accepted the $170. This testimony is corroborated by other witnesses. The complainant, it is true, fixed the time of this conversation on the 18th, the day when the deed and mortgage were signed;' but it is quite possible he is confused as to the date or occasion. Thi-s testimony is contradicted, but there is nothing improbable in it, and whether it is to be credited depends upon the credibility of the witnesses. The circuit judge, who- saw the witnesses, evidently accepted the testimony of the witnesses for the complainants; and, while we are not as well ■satisfied as we would wish to be, we think that on the whole the weight of testimony supports complainants’ contention on this point.

As to the incumbrance of the life lease, it seems oom*146plainant had an arrangement with his father for its-release, and it has been in fact released lo him since the bill was filed, so that no damage resulted to-defendant.

The mortgage in terms provided for the payment of the $350 August 2, 1893. Mrs. Epworth swears that it was-given by her to secure the payment of the mortgages on the farm. This mortgage was n'ot, therefore, according to her testimony, given as a mere indemnity, but was security for the payment of the mortgages. The breach entitled complainants to foreclose. It was evidently not the intention of either party that the complainants would be bound to pay off the incumbrances before they should be entitled to resort to their security.

Decree affirmed.

The other Justices concurred.