Corbett v. Schulte

| Mich. | Jan 20, 1899

Grant, C. J.

(after stating the facts). The only real controversy of fact was whether defendant offered to move the house back on the land conveyed. Schulte had a complete title. The court instructed the jury that Corbett “had the right to cease paying if defendant, on being notified of the situation, refused to put himself in a position where he could give a marketable title to the property, including the house.” The converse of the proposition was also stated. The court further instructed the jury that the measure of damages was the money he had paid, less what they should find to be the rental value of the property.

The defendant insists that the court should have directed a verdict for him, and the refusal to so charge is the principal error alleged. There was no defect in the title or in the description of the land. Upon the execution of a deed, Mr. Corbett would have become the owner of the precise land he contracted to buy. The small building, supposed to be located upon it, was found to be a few inches over the line. At an expense of six or eight dollars, he could have removed the building so as to place it entirely upon the land conveyed. He possessed the legal right to move it, so far as the grantor was concerned, and no objection was made by Mr. Winslow to removal. He occupied it 11 years, during which time his possession was not disturbed by his neighbors. He lived upon the land five years after he knew the situation. He now seeks to make an innocent grantee pay damages for which he is in no sense responsible. His claim has no equity. Has it any standing under the law ?

If it be conceded that Mr. Corbett might have filed a bill to rescind the contract, or have abandoned the premises, and recovered back so much of the consideration as had been paid, it is also true that he might have affirmed the contract, and removed the house from the adjoining land, which Mr. Winslow asked him to do. After Mr. Schulte had given him notice of forfeiture of the contract, and demanded possession, he not only refused to vacate, but successfully defended an action for possession, basing his defense on his alleged right to withhold the remainder of the purchase price until the vendor should perfect the title. He admits that after this the vendor offered to throw off $100 of the purchase price if he would pay, and his own attorney admits a tender of a deed, not only of lot 26, but 18 inches more land upon which the house stood, which he bought for the purpose. This second suit he did not defend. His attorney testified that, at the time of the trial, the defendant offered such a deed, and was told by counsel that Corbett “did not claim any rights under the contract; that Schulte had forfeited his rights under the contract, and he simply wanted his money back.” It is elementary that a man is bound by his election of one of two inconsistent rights, and when Corbett not only delayed rescinding, but insisted on occupying under the contract to the extent of defending and defeating the vendor in an attempt to recover .possession, he unqualifiedly affirmed the contract, and limited his remedy to an action at law for damages.

Judgment reversed, with costs of both courts, and no new trial -granted.

The other Justices concurred.