Docket No. 19, Calendar No. 34,172. | Mich. | Dec 3, 1929
On July 14, 1925, the plaintiff entered into a contract with the defendants to purchase from *617 them 80 acres of land in the township of Brownstown, in Wayne county. Through mutual mistake, the land was described as being in section 4 instead of in section 9. The agreed purchase price was $67,040, of which $1,200 was then paid, $9,800 was to be paid on or before one year, and the balance in annual payments of $10,000. The defendants had the right to possession until $6,000 had been paid to them. An abstract of title was furnished plaintiff's attorney. He called the attention of defendants' attorney to certain defects in the title, and a bill of complaint was filed by defendants to quiet their title thereto. An additional payment of $2,000 was made by plaintiff on August 25, 1926. Soon thereafter, defendants began proceedings to recover possession for default in payment, and secured a judgment of restitution. Plaintiff's attorney then discovered the error in the description, and filed the bill of complaint herein, asking for reformation of the contract and that defendants "be ordered and decreed to abide by and fully carry out the terms of said agreement" as reformed.
In their answer defendants concede the error in the description, and avow their willingness at all times to have corrected the same had their attention been called to it. They also concede the invalidity of their proceeding to obtain possession. By crossbill they seek foreclosure for plaintiff's default in meeting the payments as provided for in the contract. In answer thereto, plaintiff averred that defendants were not entitled to a decree for the reason that certain defects in their title, alluded to in the bill of complaint, had not been removed. This answer was filed on May 9, 1927.
On February 8, 1928, plaintiff filed a supplemental pleading, in which he averred that, as the defendants' *618 title had not yet been perfected, he elected to surrender his interest in the property and recover from the defendants the amounts paid by him on the contract and certain other expenses, and he prayed for a decree so providing.
The facts were stipulated in open court, after which a decree was entered reforming the contract as prayed for in the bill and granting foreclosure as prayed for in defendants' cross-bill, of which plaintiff now seeks review in this court by appeal.
The record contains the calendar entries and a decree quieting title in defendants, entered on August 16, 1927, in a suit brought for that purpose by the defendants against Isaac Townsend et al. Whether this decree removed the defects of which plaintiff complained is, however, immaterial, for the reason that plaintiff by seeking specific performance "necessarily admits he is content with the title." Levin v.Hamilton,
The decree is affirmed, with costs to appellees.
NORTH, C.J., and FEAD, BUTZEL, WIEST, CLARK, McDONALD, and POTTER, JJ., concurred. *619