
    DIERKES v. WIDEMAN.
    1. Mortgages — Contracts— Consideration —Legality—Liquor License.
    A mortgage given to a brewing company to secure payment by a saloon keeper for rent, beer, and the money advanced for the license, which was taken out in the name of a third person, is supported by an illegal consideration.
    2. Same — Foreclosure—Pleadings—Issues.
    Where the answer to a bill to foreclose a mortgage asserts a want of consideration, proof that the mortgage was supported by an illegal consideration is within the issues.
    Appeal from Wayne; Donovan, J.
    Submitted January 4, 1906.
    (Docket No. 181.)
    Decided March 5, 1906.
    Bill by Frank Dierkes and Adam Klien against Julia Wideman to foreclose a mortgage. From a decree dismissing the bill, complainants appeal.
    Affirmed.
    
      James H. Pound, for complainants.
    
      Malcolm McGregor and William D. Fox, for defendant.
   Ostrander, J.

Complainants are the proprietors of the Mutual Brewing Company. The bill is filed to foreclose a mortgage given by defendant to secure payment of her note given May 19, 1898, to complainants for $500, due one year after date, with interest at 8 per cent, per annum. From a decree dismissing the bill, complainants have appealed.

Stated in few words, the facts are that complainants set the husband of defendant up in the business of a retail liquor dealer, paying the tax, State and Federal; the license being issued to some person other than Wideman. Under the arrangement made complainants leased the place of business, gave the liquor bond, furnished the beer to be sold, and procured to be made some of the furniture to be used. Mr. Wideman was to pay for beer and on account of the license weekly. Wideman owned no property. The amount claimed to be due on the note and mortgage is made up of the following items: Beer, $261.30; rent, $277; license, $153.90; total, $692.20, with credits of cash on license, $153.90; on rent, $70.49; on beer, $100; total, $324.39. The addition of the interest claimed made the amount $421.25. The court below, in an opinion filed August 24, 1901, ordered decree for this amount. Later defendant filed a petition in the cause, calling attention to the opinion of this’ court in the case of Koppitz-Melchers Brewing Co. v. Behm, 130 Mich. 649. Thereupon the decree appealed from was entered.

Upon the facts this case and the one above referred to cannot be distinguished. It is claimed that because the-answer does not set out the illegality of the transaction, but asserts want of consideration only, the defense actually presented should be disregarded. But the arrangement proven established the fact that the note and mortgage were not given for valid consideration.

The decree is affirmed.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.  