31 Mich. 400 | Mich. | 1875
The purpose of this suit is to have a mortgage by complainant to defendant decreed to be given up and cancelled, on the ground that it was obtained by fraud. The mortgage bears date November 20, 1872, and it appears that for a short time previous to this the defendant and Charles Wartemberg had been in partnership in a grocery and provision store, and defendant had just sold out to Charles his interest. Complainant, according to her account, was ignorant of the negotiations between Charles and the defendant, and she alleges that the latter came to her and obtained the mortgage by claiming to own everything in the store, and threatening to turn Charles off and not allow him any participation in the business or profits unless the mortgage was given. Defendant, on the other hand, avers that when he went into partnership with Charles it was at the solicitation of complainant, who promised that he should not lose by it, and that she would make good her promise by mortgage security if necessary; that after agreeing with Charles upon a sale, he went privately to complainant, and told her that he must have security for the purchase price; that she expressed a willingness to give it, and they both went to the office of justice Stoll, who prepared a note and mortgage for $9o'0, which was the amount figured up by Charles as payable to defendant; and that complainant then executed them, telling him not to let Charles know about them, for fear of making trouble in the family, and that he promised not to do so, and further promised if he could obtain from Charles an endorsed note for the amount, these papers should be surrendered; that he told justice Stoll not to have the mortgage recorded for some days, in
We are satisfied from the defendant’s own statement, that this woman has been wronged. Passing by the fact that a mortgage to secure him on a sale to Charles could not be considered as within the promise he claims she made him that she would secure him against loss by Charles in the partnership, all the circumstances attending the obtaining of the mortgage, as they are stated by himself, are suspicious and tend very strongly to show that complainant was being deceived. No reasonable excuse is given for going to her without the knowledge of Charles, and under circumstances of secrecy, to obtain security for Charles’ obligation, and her first remark, when he met her the day before obtaining the mortgage and. showed her a statement from Charles that a certain sum was to be paid to defendant: “Mr. Speigel, if any thing is going to happen, as I told you before, I am willing to give you a mortgage,” indicates strongly that her fears for her son were appealed to. Although he carries the idea that he told her in this conversation he was selling out to her son, the actual words of the conversation as he gives them, both on that day and the next, indicate rather that he was demanding security under the previous promise, and it is noticeable that when they went to the office of Mr. Stoll to have the papers drawn, no explanation whatever was made of the transaction to this gentleman, but throughout the defendant managed the whole transaction and complainant submitted blandly to his directions. This is somewhat remarkable if defendant believed his dealings were honest, for Mr. Stoll was a very proper person to consult on such matters, and when defendant was thus about to obtain from a woman, whom the evidence shows to have been very old and feeble in intellect, a security for the debt of another without the knowledge of her family, he was under the highest obligations to make it clear that she fully understood what she
We have found it impossible to believe that these transactions were all right on the part of the defendant. This old woman seems to have put herself entirely into his hands in a transaction which specially concerned his interest, and it was for him to show that the confidence was not abused. The reasons he assigns for keeping the mother and son apart in the negotiations are so unsatisfactory that they ought to have been supported by the testimony of some disinterested person like Mr. Stoll, and his making no attempt to perform his alleged promise to complainant, that if he could obtain security from the son he would surrender the mortgage, and his putting the mortgage immedi
The decree must be reversed, and decree entered for complainant in this court, with the costs of both courts.
