126 Mich. 11 | Mich. | 1901
Complainant and defendant Annie Jasspon are brother and sister. Max Jasspon, the other defendant, is the husband of Annie. In 1892, and for some years prior thereto, the defendants rented from complainant the premises involved in this suit. Mr. Jasspon was carrying on a clothing business, and was. advanced moneys from time to time by complainant for his business. Previous to February, 1892, it is claimed by defendants, Jasspon concluded to purchase the premises belonging to complainant, intending to make his wife a present thereof, and that, without her knowledge and consent, he negotiated and agreed on the bargain, and on January 27th sent his personal check for $500, and duplicate contracts for the complainant to sign; that Max Jasspon signed Annie’s name, as per Max Jasspon; that it was understood by complainant that Annie was only a nominal party, that Max Jasspon was the purchasing party, and that complainant looked to him to settle in the future. We think the testimony tends to show these facts.
The contract is dated February 1, 1892; the purchase price being $2,800, to be paid as follows: $500 at the date of purchase; $500 July 15, 1892; $500 February 1, 1893; $800 July 1, 1893; $500 December 15, 1893, — with interest
It is claimed by defendants, further, that a few days after giving the trust mortgage to complainant and Maltz, securing the $4,117, complainant came to Alpena, and Jasspon asked him to turn.over the securities, and complainant said he would fix it up. It is further claimed that he urged complainant from time to time to turn back to him the securities he then held, and that in 1898 he told complainant that he would surrender the house contract and pay rent on the premises if complainant would give up the securities, or that he would pay him $1,500 in
“We have been served with notice pertaining to the house, etc., purchased from you under land contract. We desire to notify you that you have been paid in full for all dues on said contract, by keeping property turned over to you as security, which you refuse to give up; and we hereby demand payment for the differences of the amount that was due on land contract before you converted and refused to give up securities turned over to you, and the values of the securities in excess of said contract, to wit, $3,000.”
It is claimed that although complainant admits that the funds received from the sale of the mortgaged property, if properly applied, would pay all Jasspon’s indebtedness to him, except the house and lot indebtedness, he refused, after repeated demands, to deliver up the same, but converted them to his own use, and that in this proceeding, which is a bill filed to foreclose the land contract, the defendants have the right to have the value of- these securities so converted by complainant set off against the contract price, and that they are entitled to a decree in their favor for the balance. The testimony of defendants tends to support these claims.
It is claimed by complainant that there was about $1,700 not included in the trust mortgage; that there was due him on the indebtedness from Jasspon, exclusive of that due under the land contract, the sum of $1,400. On the
The court below was of the opinion that the value of these securities which the complainant refused to turn over to Jasspon could not be set off by Jasspon and his wife against the amount due on the land contract, and entered a decree in the case finding that there was due upon the contract from the defendants to complainant the sum of $3,725.10, and decreed a sale of the premises to meet the amount due. We think the court below was not in error in this ruling. It is claimed by counsel for defendants that the court should have allowed the set-off, and have determined the difference in the amounts in their favor, and rendered a decree for them for such difference, on the ground that if there are special equities, growing out of the transaction itself, requiring it, courts of equity will allow set-off in cases where the law will not. Under our statute (subdivision 6, § 10075, 3 Comp. Laws 1897), set-offs are only allowed, where there are several defendants, when the demand to be set off is due to them all jointly, except where other provision is expressly made by law. Here the demand is owned by Max Jasspon individually, and is not a joint demand by both himself and wife. As a general principle, courts of equity follow the rules of law in enforcing set-offs. There are no special equities growing out of the transaction requiring set-off in the present case. The general rule is that equity requires cross demands to be set off against each other, if, from the nature of the claim or the situation of the parties, justice cannot otherwise be done, as where the plaintiff is insolvent, thus rendering it apparent that defendant cannot obtain satisfaction unless set-off be allowed. In Munger v. Bank, 85 N. Y. 580, 588, it was said:
“Equity sometimes allows a set-off when law will not, because of the insolvency of one debtor, and the willingness of the other to anticipate the time for the payment of the debt owing by him, if the whole or a part of that owing to him may be applied as a set-off.”
The decree below must be affirmed, with costs to complainant.