Weise v. Anderson

Grant, J. (after stating the facts). Aside from the deeds executed by the defendant to the plaintiff, and by the plaintiff to his brother, and the land contract, the transactions between all the parties rest entirely in parol. [505] The instruments themselves are consistent only with an absolute sale. The value of plaintiff’s interest as a stockholder in the tangible assets of the corporation at the time he transferred his stock was about $2,000. Plaintiff and defendant were both business men, and understood the nature and effect of the deeds which were given and received. For nearly six years plaintiff was in possession of the property, dealing with it as his own, and finally conveying the title thereto by warranty deed. The deed of the lots by plaintiff to his brother, and on the same day a reconveyance of these same lots to plaintiff and his wife, as tenants by the entirety, is very nearly conclusive that the deeds from defendant to plaintiff and from plaintiff to his brother were not intended as mortgages. If, however, it be conceded that the testimony in his behalf was sufficient to raise a doubt as to whether the deeds were in fact mortgages, still it must be held that plaintiff is not entitled to a reversal of the judgment. Under his own theory, he was a mortgagee in possession, under a conveyance upon its face a warranty deed. For nearly six years he controlled the land, leased it,, conveyed it, and received the rents and profits. Even if he could maintain a suit at law, it was his legal- duty to account for the rents and profits he had received from the use of the property, and to place the defendant in statu quo. There is no testimony to show how much he received, or how much he expended. A deed conveys the legal, title to the grantee. When either party claims that it was, in effect, a mortgage, the usual remedy is by bill in equity to have it so declared. This is the proper remedy, especially in a case where there must be an accounting for rents and profits. It is true that the question may sometimes arise in a suit at law, as where the grantor sues the grantee for the purchase price. Kellogg v. Northrup, 115 Mich. 327 (73 N. W. 230). No such case is presented by this record. The direction of the circuit judge was correct. Judgment affirmed. [506] Hooker, C. J., Moore and Montgomery, JJ., concurred with Grant, J. Carpenter, J., concurred in the result.