Levenson v. Cohen

Michigan Supreme Court

Levenson v. Cohen

229 N.W. 433, 250 Mich. 31, 1930 Mich. LEXIS 912

CourtMichigan Supreme Court

DecidedMarch 6, 1930

DocketDocket No. 111, Calendar No. 34,517.

StatusPublished

Cited by4 cases

This text of 229 N.W. 433 (Levenson v. Cohen) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Levenson v. Cohen, 229 N.W. 433, 250 Mich. 31, 1930 Mich. LEXIS 912 (Mich. 1930).

Pincite

Opinion

Fead, J.

Plaintiffs brought this suit to declare a deed and land contract back a mortgage, to restrain its forfeiture as a land contract, and, upon a claim of usury, to have the amount of the debt adjusted. Defendants filed cross-bill for foreclosure of the contract. The court held the transaction a mortgage, the loan usurious, found the debt at the sum of $8,200, allowed defendants interest at six per cent, per annum, and decreed foreclosure as a mortgage. Defendants appealed.

The deed and contract were executed and delivered simultaneously. Neither made any mention 'of mortgages outstanding of some $13,000. Each warranted fully against incumbrances. There was no evidence that the transaction was intended as an actual sale and resale. Eliminating the incompetent *33 testimony of plaintiffs as to conversations with Rosen, the testimony is conclusive, especially that of Rosen’s agent, Cohen, who closed the transaction for his principal, that the instruments were taken as security. They constituted a mortgage. Clark v. Landon, 90 Mich. 83; Huebner v. Lashley, 239 Mich. 50; Maginn v. Cashin, 196 Mich. 221; Skupinski v. Provident Mortgage Co., 244 Mich. 309.

The contract price was $10,000. Rosen sent Cohen $8,200 to pay plaintiffs. Plaintiffs admitted they received that sum, and claimed they got no more. Cohen proved no more. He attempted to prove an additional $1,000, for which he produced a check, but the bank records demonstrated it was part of the $8,200. The testimony shows the loan to have been usurious.

The decree is affirmed, with costs to plaintiffs, including mortgage tax paid by them, which this court required to be paid as a condition precedent to consideration of the case.

Wiest, C. J., and Butzel, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred.

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Fead, J.

Plaintiffs brought this suit to declare a deed and land contract back a mortgage, to restrain its forfeiture as a land contract, and, upon a claim of usury, to have the amount of the debt adjusted. Defendants filed cross-bill for foreclosure of the contract. The court held the transaction a mortgage, the loan usurious, found the debt at the sum of $8,200, allowed defendants interest at six per cent, per annum, and decreed foreclosure as a mortgage. Defendants appealed.

The deed and contract were executed and delivered simultaneously. Neither made any mention 'of mortgages outstanding of some $13,000. Each warranted fully against incumbrances. There was no evidence that the transaction was intended as an actual sale and resale. Eliminating the incompetent *33 testimony of plaintiffs as to conversations with Rosen, the testimony is conclusive, especially that of Rosen’s agent, Cohen, who closed the transaction for his principal, that the instruments were taken as security. They constituted a mortgage. Clark v. Landon, 90 Mich. 83; Huebner v. Lashley, 239 Mich. 50; Maginn v. Cashin, 196 Mich. 221; Skupinski v. Provident Mortgage Co., 244 Mich. 309.

The contract price was $10,000. Rosen sent Cohen $8,200 to pay plaintiffs. Plaintiffs admitted they received that sum, and claimed they got no more. Cohen proved no more. He attempted to prove an additional $1,000, for which he produced a check, but the bank records demonstrated it was part of the $8,200. The testimony shows the loan to have been usurious.

The decree is affirmed, with costs to plaintiffs, including mortgage tax paid by them, which this court required to be paid as a condition precedent to consideration of the case.

Wiest, C. J., and Butzel, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred.

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Bluebook (online)

229 N.W. 433, 250 Mich. 31, 1930 Mich. LEXIS 912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levenson-v-cohen-mich-1930.

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