222 N.W. 697 | Mich. | 1929
October 26, 1926, plaintiff sold defendant certain premises on land contract. February 21, 1927, defendant was in default and plaintiff gave notice of forfeiture of the contract. Defendant paid up, later again became in default in payments, and on May 19, 1927, plaintiff gave it another notice of forfeiture. There is no claim that the notice was not sufficient nor effective. Nothing further was done by either party until July 23, 1927, when plaintiff filed this bill for foreclosure of contract, praying *450 sale of the premises and deficiency decree. Under the contract defendant had right of possession of the premises, but it had no actual possession as the property was vacant. The contract contained the usual provision that on default of the vendee the vendor had the right to declare the contract void, retain moneys paid and improvements, and retake possession. Defendant concedes plaintiff's right to take possession. Plaintiff had decree of foreclosure and for deficiency.
Having so declared forfeiture, can plaintiff maintain this action? On vendee's default in a land contract containing the usual forfeiture clause, vendor may treat the contract as continuing in force and sue at law upon it for payments due or bring action in equity for foreclosure of the vendor's lien and deficiency decree; or he may declare it forfeited. Ejectment or summary proceedings to regain possession are no part of forfeiture. Crenshaw v. Granet,
"If the vendor exercises his option to declare the contract at an end, he cannot change his position and thereafter hold the purchaser liable to complete the purchase or pay any part of the unpaid purchase money. The remedy of the vendor by way of a cancellation of the contract and the continued liability of the purchaser for the purchase money are totally inconsistent, and the exercise of the former terminates *451 any further liability of the purchaser for the purchase money." 27 R. C. L. p. 666.
However, forfeiture may be waived. Krell v. Cohen,
A court of equity will sometimes relieve a vendee against forfeiture where his default has been merely in the payment of money and his general conduct has not been such as to render it unjust that he should be relieved. Lozon v. McKay,
The decree will be set aside and one entered dismissing the bill, with costs of both courts to defendant.
NORTH, C.J., and FELLOWS, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred. *452