(3) The defendant, T. Williard Ready, further shows that immediately after the entering into of said contract wherein the defendant purchased plaintiffs' interest, that an oral understanding and agreement was entered into between the defendant, T. Williard Ready, and the plaintiffs whereby the plaintiffs were to operate the said hotel for and on behalf of the said defendant. That all the receipts of the hotel after the payment of incidental and running expenses were to be used in the repair and upkeep of said hotel and the payment of the taxes and insurance thereon, and under the said agreement the plaintiffs have since said 6th day of June, 1917, operated the said hotel, received all the profits therefrom, paid the repairs, taxes and insurance thereon in accordance with the said agreement with the said defendant, T. Williard Ready. That on divers times and occasions, the said expenses exceeded the receipts of the said hotel and the said defendant, T. Williard Ready, was required to advance the necessary sums for repairs and that he did expend for repairs on said hotel, upwards of Two Thousand Dollars ($2,000), all with the knowledge and consent of the plaintiffs and acting under the said agreement so entered into as aforesaid. That the said property has since said date greatly increased in value and is now of the value of $25,000 or more. That the defendant intends to build a hotel thereon and construct a new building upon the real estate therein described; that during the last eighteen months the hotel business has been exceedingly profitable and the said plaintiffs have received large sums of money over and above the running expenses of said hotel, which sums they have refused to account for to the said defendant and that the defendant is informed and believes that upon an accounting of the receipts and expenditures of said hotel the said plaintiffs will owe and do now owe the defendant the sum of five thousand dollars, for which sums they should be required to account and pay. That the plaintiffs are in the employ of the defendant and are not tenants under him. That the defendant has repeatedly requested and demanded that possession of the said hotel be given to him and that an accounting be had by the plaintiffs for their receipts and expenditures while acting for and on behalf of the defendant. That the defendant is now entitled to the possession of said hotel and the plaintiffs have no right, title or interest therein.

Therefore, the defendant prays:

(1) That the plaintiff be required to answer this cross-bill, paragraph by paragraph, but not under oath, and that the plaintiff show cause, if any thereby, why the defendant should not have the relief prayed for in said defendants' cross-bill.

(2) That the defendant, T. Williard Ready, be declared and decreed by this court to be the sole owner of all of the real estate and personal property herein described as (description of property) subject only to a mortgage held thereon by Newman & Snell's State Bank.

(3) That the defendants, Francis J. Birney and Timothy A. Birney, be declared by this court to have sold, transferred and conveyed to T. Williard Ready by a good and sufficient conveyance all their right, title and interest in and to the said property and that they, the plaintiffs, had no right, title or interest therein.

(4) That the defendant, T. Williard Ready, be decreed to be the sole owner of the property hereinbefore described and entitled to the possession thereof

(5) That an accounting be had between the parties hereto and that the plaintiffs be ordered and decreed to account to the defendant for all of the receipts and disbursements made by them since the 7th day of June, 1917, for and on behalf of the defendant in the operation and maintenance of the hotel on said premises and that the defendant have judgment against the plaintiffs for the amount found due to the defendant upon such accounting.

(6) That the plaintiffs be required to quit, surrender and deliver up possession of all the said premises and property by the order and decree of this court.

(7) That the defendant may have such other and further relief in the premises as shall seem just and equitable, the premises being considered.

And the defendant will ever pray.

GLENN E. WARNER, WILBUR N. BURNS, PHILLIP A. HADSELL,

Attorneys for Defendant.

(d) Brief for the Plaintiff.-It is the settled doctrine of equity that the form of a transaction will never preclude inquiry into its real nature, but in all cases the intention of the parties must control irrespective of the form, and consequently if a conveyance is made and security for money in whatever form the conveyance is made or whatever cover may be used to disguise the transaction and hide its real character from others it will be treated and held as a mortgage. Flynn v. Holmes, 145 Mich. 606; Darling v. Darling, 123 Mich. 307; Crawford v. Osmun, 70 Mich. 561; Jones on Mortgages, paragraph 20; Cyc. 27, 991.

In the case of Crawford v. Osmun, Supra, the plaintiff assigned a land contract to the defendant and later gave him a quit claim deed. Subsequently she filed a Bill of Complaint to redeem on the theory that the transaction amounted to a mortgage. The lower court dismissed the Bill of Complaint but the Supreme Court sustained her contention and granted the relief prayed.

The defendant Ready is asking for the specific performance of a contract to sell which he claims was made on the 7th day of June, 1917

He is not entitled to specific performance of this contract as a matter of right.

In Solomon v. Shewitz, 185 Mich. 631, this court said: "However, it has apparently been held that the jurisdiction of a court of equity to decree specific performance of contracts is not a matter of right to be demanded ex debito justitiae, but application invoking this power of the court was addressed to its sound and reasonable discretion and are granted or rejected according to the circumstances of the case."