Murray v. Near

Michigan Supreme Court

Murray v. Near

63 N.W. 980, 106 Mich. 59, 1895 Mich. LEXIS 936

DecidedJuly 2, 1895

StatusPublished

This text of 63 N.W. 980 (Murray v. Near) 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

Murray v. Near, 63 N.W. 980, 106 Mich. 59, 1895 Mich. LEXIS 936 (Mich. 1895).

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Opinion

Grant, J.

The rights of the parties to the contract involved were substantially settled in Near v. Donnelly, 80 Mich. 130. Pursuant to that decision the case was remanded, and referred to a commissioner, who reported to the court; and upon the coming in of the report the court decreed that Near was entitled to, and had an equitable lien upon, an undivided 5-18 of the property, and that the interest then due was $870.52. This Donnelly subsequently paid. The hotel business having become unprofitable, Mr. Donnelly discontinued the business, and filed the bill in this cause to determine the rights and interests of the respective parties, for the [61]*61appointment of a receiver, and for the winding up of the affairs of the concern. Mr. Donnelly died during the pendency of the suit, and it was revived in the name of his administrator. The court entered a decree that Mr. Near owned 50-180, and Mr. Teal 3-180, and complainant 127-180, of the property; that there was due to Near $82.1)9 for interest upon the closing of the hotel. The-property was ordered sold, and the proceeds divided among the parties, giving to Mr. Near the accrued interest.

Defendant insists that the relation existing between Donnelly and the subscribers was that of debtor and creditor. It was decided in the former case that that relation did not exist, but that each subscriber was entitled to an interest in the hotel property according to the amount of his subscription. The relation of debtor and creditor existed only as to the interest which Donnelly agreed to pay while he was running the hotel. Payment of this interest was enforceable in an action at law. Near v. Donnelly, 93 Mich. 460. We think equity had jurisdiction to determine the rights and interests of the parties to this contract, and that the decree for a sale of the property and division of the proceeds was right.

Decree affirmed, with costs!

The other Justices concurred.

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Grant, J.

The rights of the parties to the contract involved were substantially settled in Near v. Donnelly, 80 Mich. 130. Pursuant to that decision the case was remanded, and referred to a commissioner, who reported to the court; and upon the coming in of the report the court decreed that Near was entitled to, and had an equitable lien upon, an undivided 5-18 of the property, and that the interest then due was $870.52. This Donnelly subsequently paid. The hotel business having become unprofitable, Mr. Donnelly discontinued the business, and filed the bill in this cause to determine the rights and interests of the respective parties, for the [61]*61appointment of a receiver, and for the winding up of the affairs of the concern. Mr. Donnelly died during the pendency of the suit, and it was revived in the name of his administrator. The court entered a decree that Mr. Near owned 50-180, and Mr. Teal 3-180, and complainant 127-180, of the property; that there was due to Near $82.1)9 for interest upon the closing of the hotel. The-property was ordered sold, and the proceeds divided among the parties, giving to Mr. Near the accrued interest.

Defendant insists that the relation existing between Donnelly and the subscribers was that of debtor and creditor. It was decided in the former case that that relation did not exist, but that each subscriber was entitled to an interest in the hotel property according to the amount of his subscription. The relation of debtor and creditor existed only as to the interest which Donnelly agreed to pay while he was running the hotel. Payment of this interest was enforceable in an action at law. Near v. Donnelly, 93 Mich. 460. We think equity had jurisdiction to determine the rights and interests of the parties to this contract, and that the decree for a sale of the property and division of the proceeds was right.

Decree affirmed, with costs!

The other Justices concurred.

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Bluebook (online)

63 N.W. 980, 106 Mich. 59, 1895 Mich. LEXIS 936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murray-v-near-mich-1895.

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