Wilhelm v. King Auto Finance Co.

I think the decree entered in the circuit court should be affirmed, and that sufficient reasons therefor are set forth in the following portion of the opinion filed by the circuit judge: "The court is of the opinion that the transaction in question is not subject to being voided for the reason that the defendants' mortgage was obtained by duress. There does not seem to the court to have been any bad faith in what was done with relation to Wilhelm. He undoubtedly was guilty, and he and his family undoubtedly sought to make restitution with a view to having the proceedings dropped. The acceptance of restitution was in no sense improper, and no fraud or deceit was practiced upon the court or upon the court officials. The judge and the prosecutor both knew what had been done. If, in their judgment, it was proper to drop the proceedings, the public has been protected, as far as the law contemplates. If the law were as contended for by the plaintiff, it would be impossible for any injured and defrauded plaintiff to make a settlement which could not be subsequently repudiated in a proceeding like this. I do not believe that justice demands such a rule. "There is another reason why Eleanor Wilhelm's bill lacks equity. She herself was a party, as indorser, on the original obligations. In making a new mortgage, she was securing a discharge of her own previous obligations. It is probable that she might have defended in an action on the original obligations by pleading coverture, but the fact remains there was a consideration moving to her in their extinguishment." *Page 469 To the above might be added that notwithstanding plaintiff through counsel secured possession of the notes of herself and husband in lieu of which the mortgage here in suit was given, neither at the time of filing her bill of complaint nor at any time since has she tendered a return of all of the notes thus secured by her from the defendants. The least that could be asked of plaintiff as a condition of granting her equitable relief would be the return to defendants of all of the chattel mortgage notes which she secured from them by giving the mortgage which she now seeks to have canceled. Because of her failure to do equity she is denied the relief sought, and the decree entered in the circuit court is affirmed, with costs to appellees. CLARK, C.J., and FEAD, WIEST, and BUTZEL, JJ., concurred with NORTH, J.