170 Mich. 664 | Mich. | 1912
The complainants are husband and wife. They filed their bill of complaint to have a certain land contract made to them as purchasers by the defendant as vendor on April 27, 1910, declared null and void by reason of fraud practiced upon them by the defendant in
It appears that at the date above stated the defendant was the owner of an equity in a farm of 40 acres of land in the township of Royal Oak, in Oakland county. Defendant’s interest in this farm was evidenced by a certain land contract which he had entered into on February 1, 1910, with one Andrew Rinkey and wife, in and by which the latter agreed to convey to defendant the land in consideration of $4,000, to be paid as follows: $1,136.59 paid at the date of the contract, and the remaining $2,863.41 to be paid in payments of $15 or more per month, interest payable every six months at 6 per cent, until due, and 8 per cent, thereafter. When the principal sum should be lowered to $1,200, being the amount of a certain mortgage held by the Oakland County Savings Bank of Pontiac, the parties of the first part to said contract should give defendant a deed of the premises, and defendant was to receive a deed subject to said mortgage. The undisputed evidence shows that there were two mortgages on said farm held by said savings bank, one of $1,000 dated July 14, 1906, due one year after date, and another of $250, dated July 5, 1907, payable three years after date, both bearing interest at 6 per cent, per annum.
Such being the condition of defendant’s interest in the said farm, it is the claim of the complainants that he approached them in March, 1910, in the city of Detroit, where all of the parties then lived, and fraudulently and corruptly represented to them that he was the owner of said premises, that he had a warranty deed of the same, that his title thereto was perfect of record, that the same was free from all liens and incumbrances, that, if they would purchase it, there would be no other parties interested therein, and that the land was first-class land for crops, and that the soil was a sandy loam with a clay subsoil, and suitable for raising grains and farm products of all kinds. Complainants further claim that they were wholly unacquainted with farming and the value ot farm
In the month of December, when they went to pay the taxes on the farm, the complainants claim that they discovered that the lands were assessed to Rinkey. They paid the taxes, and then made inquiry about some fire insurance premium that they had learned was due on the buildings, and were informed that they had no insurable interest in the buildings, and that the insurance was in Rinkey’s name. They claim that this made them suspicious about the state of the title, and that they applied to the defendant for an abstract of title, which he promised from time to time to(get for them, but never did. After waiting in vain some weeks for the promised abstract, complainants finally obtained one themselves, which showed the true condition of the title. Upon defendant learning what had been done, complainants claim that he became very angry, and, as they were then in arrears in their monthly payments, he served notice of forfeiture of the contract, and it is undisputed that he commenced summary proceedings to get possession of the farm, which proceedings were pending when the bill in this cause was filed.
The circuit court entered a decree for the complainants declaring the contract null and void, for fraud, and vacating and setting the same aside and dismissing the cross-bill. It also adjudged that defendant should pay to complainants $525 and interest from the date of the decree, being for the amount paid by complainants on said land contract, and for improvements made by complainants on said premises, together with complainants’ costs to be taxed, and awarded execution therefor.
The defendant has appealed. He contends in this court that it is not conclusively shown that complainants were deceived by any representations made by defendant as to his title to the property. We are of opinion that the circuit judge reached the correct conclusion upon that branch of the case. Not only did the circuit judge have the superior
Instead of having a perfect title to this land in fee as represented, the defendant had an equity, in peril of being foreclosed and cut off by an overdue mortgage. At most, he gave complainants an equity of an equity, liable to be cut off by two mortgages, both overdue at the time of hearing. Not only is this true, but defendant had agreed to accept a deed from his grantor subject to and agreeing to assume those mortgages. That such representations of condition of title were material has been repeatedly held. See collection of authorities in Wegner v. Herkimer, 167 Mich. 587-595 (133 N. W. 623). It is contended by defendant that this representation as to condition of title is no ground for rescission of the contract, and he cites Silfver v. Daenzer, 167 Mich. 362 (133 N. W. 16), in support of such claim. We think that the case is readily distinguished. Here fraud is charged and proven. There no fraud was claimed, and it appeared that the contract was made in good faith, and the defect was susceptible of being easily perfected, and, by the undisputed testimony, would be perfected by decree in a case then pending for that purpose.
It is also claimed by defendant that complainants by their conduct are entitled to no relief; that they remained in possession and were content until they got in arrears in making the monthly payments; and that they made application to defendant for a new contract after knowledge of all the facts. We cannot agree with this contention. Complainants got in arrears while they were waiting for the promised abstract. After they learned the true condition of the title, it is true that there was some talk leading to a new contract, which was never entered into. Upon the precipitate action of the defendant to de
We think, hpwever, that defendant should be allowed for the rental value of the premises while occupied by complainants. We understand that they have left the land. There was evidence of its rental value. We think that the decree should be so modified as to allow defendant $125 for the use of the land while occupied by complainants, and that the judgment on the $40 note should be discharged by the defendant. The amount of complainants’ recovery against defendant will be $400, instead of $525. The decree will be modified as herein indicated, and will stand affirmed in all other respects, including costs to complainants in the court below. The defendant will recover his costs of this court.