Summary
finding that mortgagor was entitled to bring a suit for discharge when mortgagee "in fact was paid all he had coming under the [mortgage] in question"
Summary of this case from In re SchmielOpinion
Docket No. 11911.
Decided May 30, 1972.
Appeal from Wayne, John M. Wise, J. Submitted Division 1 April 11, 1972, at Detroit. (Docket No. 11911.) Decided May 30, 1972.
Complaint by Pine Ridge Coal Company against Richard B. Cronin for a determination that a mortgage is discharged. Judgment for plaintiff. Defendant appeals. Affirmed in part and remanded in part for further proceedings.
Berry, Moorman, King, Lott Cook, for plaintiff.
Richard B. Cronin, in propria persona.
Defendant, a nonlawyer, appeals of right in propria persona from a judgment adverse to him in the Wayne Circuit Court.
In the trial court, the matter was brought on by an order to show cause why a certain mortgage should not be discharged pursuant to MCLA 600.3175; MSA 27A.3175. All of the mortgagees save appellant executed a discharge.
The trial judge granted the relief sought.
It is not disputed that appellant received the same amount in payment as did the other mortgagees. The difference is that appellant here contends that the payments made to him, identical in time and amount as the others, were really made to him by the mortgagor pursuant to a commission arrangement based on amounts of tonnage that appellant was able to induce shippers to unload over the dock property which was the subject of the mortgage.
There is no dispute that upon receipt of the like payments as the other mortgagees, appellant cashed the checks and retained the amounts paid. In each case, the mortgagor included on the face of the checks this statement, "Partial payment for real estate mortgage". On each check he received, appellant before he cashed it, added legends in substance, as follows: "Protest Richard B. Cronin does not waive his rights on property" and "Without my approval" and similar phrases.
In effect, the trial judge held that the protests, if indeed they can properly be called protests, were legally insufficient, that appellant in fact was paid all he had coming under the instrument in question, and that if appellant was owed commissions by the mortgagor as a result of some commission agreement, such debt was the subject of a separate claim and irrelevant to the issue presented by the show-cause and petition for order of discharge.
It should be, and is, noted here that appellant also claimed the mortgage was a nullity for want of proper execution, and that the mortgagor did not in fact own the mortgaged property.
One regrettable aspect of this litigation is that the four mortgagees are (were) brothers and sister. Appellant suggests an intra-family conspiracy of sorts, and that he alone is trying to carry on the family affairs in a proper manner. The involved property was owned at one time by the mortgagees' parents.
It is manifest that appellant is deeply distressed by the outcome of the litigation. He pressed his cause in an orderly and not totally unprofessional manner before us. Unfortunately for him, his position is legally unsound. The evidence adduced below supports the trial judge's finding. We can do nought but affirm.
Appellee, too, seeks relief from us. It asserts that the order discharging the mortgage contains a "clerical" error, under GC R 820.1(1). The relief sought includes amending the order below to change the liber number from 153336 to liber 15336. Appellee also asks to make various other changes in the order more particularly describing the original mortgage and certain assignments thereof.
We decline. Were the relief sought limited to what appears to be simply an additional digit in the liber number, and thus perhaps a manifest typographical error, we would be disposed to grant the relief requested.
We note particularly that the original instrument was not produced in the court below. Defendant challenged it in that court. We believe it would be an overuse of appellate authority to make what amounts to findings of fact on appeal, and merely on representations of the appellee in his brief.
As to this aspect of the case, we remand to the trial court for such proceedings as are necessary to adduce proof in support of the allegations made.
No costs, neither party having prevailed in full.
All concurred.