Strauss v. Braiker

249 N.W. 889, 264 Mich. 359, 1933 Mich. LEXIS 1019

• Court: Michigan Supreme Court
• Decided: August 29, 1933
• Docket: Docket No. 61, Calendar No. 37,092.
• Status: Published

Opinion

Clark, J.

Dora Braiker, mortgagor in a mortgage to secure an issue of bonds, conveyed to Julius Berman and David Davis by warranty deed, tbe grantees assuming and agreeing to pay the mortgage debt.

Tbe question here on tbe appeal of Davis is tbe right of tbe mortgagee and trustee to have personal decree for deficiency against him, and tbe denial of such right is based upon a purported assignment by Dora Braiker of “tbe covenant in said deed, that tbe vendees therein assume and agree to pay tbe mortgages therein set forth,” to Edward J. Strata and Gerson Cass, otherwise strangers to tbe matter.

After tbe conveyance to Davis, and (quoting from brief) — “during tbe four years that Davis managed tbe property Davis made the sinking fund deposits required by tbe mortgage. Tbe Strauss Company on August 29, 1925, December 15, 1925, and April 30, 1928, delivered Canceled bonds and coupons so paid to defendant Davis and received from him written receipts therefor,” before tbe purported assignment notices of default had been given by tbe trustee. On the facts, the case is controlled by James S. Molden Co. v. Applebaum, 263 Mich. 507. See, also, Federal Bond & Mortgage Co. v. Shapiro, 219 Mich. 13.

It might be added that tbe assignment here to strangers is nothing beyond an idle gesture. Woodcock v. Bostic, 118 N. C. 822 (24 S. E. 362).

Affirmed, with costs.

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