213 Mich. 309 | Mich. | 1921
The parties to this suit are two brothers and their' wives, who are sisters. Plaintiffs pray for relief from forfeiture and. ask specific performance of a land contract given them by defendants covering a lot of 21 feet front with a three-story and basement brick building thereon, located on East Main street in the city of Owosso. Plaintiff Ira G. Curry had long conducted a hardware store in the building. The property formerly belonged to Lewis V. Gurry, father of Ira and Arthur Curry, who died in 1910.
The contract, dated June 15, 1910, runs from defendants to plaintiffs, being signed and acknowledged by all four of them. It is a common short form of land contract. The purchase price is made payable within 5 years, with interest at 6 per cent, per annum, payable semi-annually on all sums remaining unpaid. The vendees are required to keep the buildings insured in the vendors’ favor to the amount of $3,000 and pay all taxes of every nature assessed against the property. It contained the not unfamiliar forfeiture clause for nonperformance, authorizing the parties of the first part to immediately déclare the contract void, treat parties of the second part as tenants holding over without permission and remove them therefrom, in case of any failure by the latter “to perform this contract or any part thereof.” It contains no provision making time the essence of the contract.
The family and business relations of the parties appear to have continued amicable and Arthur remained in his brother’s employ until shortly before this bill was filed early in January, 1920. During that time he worked in various capacities in and around the store, part of the time at tinning and plumbing, and also as clerk and salesman, and other general work necessary around á hardware store. He carried a key to the store and in the line of his employment had like access as his employer to the various parts of the premises. It is undisputed that almost from the beginning plaintiffs did not keep up their payments in accordance with the terms of the contract; and it is also shown without dispute from entries made at the
“Every dollar of rent received from the building, whether paid to Ira or to me, went to me and I credited it to Ira upon his contract account.”
On December 30, 1919, a notice of forfeiture prepared by counsel was served upon plaintiffs at the instance of defendants. On the morning of Saturday, January 3, 1920, Ira went to his store as usual but could not open the door with his key and on investigation found the store and basement in which he had goods locked and barred against him. He also found on the outside a three-word note in Arthur’s handwriting referring him to an attorney. He was thereafter excluded from his store and unable by peaceable means to open or enter it until the following Tuesday, January 6,1920, when enforced exclusion was relieved by a temporary injunction issued by the circuit court, in chancery, of that county. It was learned on cross-examination of Arthur that he had effected this sudden measure of exclusion during closing hours of business when his brother was absent by letting himself into the building at about 11 o’clock of the night before, using for that purpose the key of the store which he carried, and then firmly barred the doors, on the inside against entrance of the store or basement from without. He did nothing to exclude the tenants or anybody else from the second or third floor of the building. At that time part of Ira’s stock of goods was on the third floor, as well as the first floor and basement.
Many pages of the record are devoted to a schedule of payments on the contract, with computation of balances due from time to time, including interest on interest, from which the trial court found there was yet due on the contract the sum of $8,482.12, covering all charges and arrearages within its purview up to the time of the hearing. This computation is not challenged by defendants, though gone over by Arthur, as he testified, and is apparently accepted as correct.
We do not deem it necessary to review in detail the arguments made by counsel upon the equities involved with extended citation of authorities directed to the propriety of granting or refusing equitable relief. It is elementary that equity does not favor forfeitures, and when time is not of the essence of the contract relieves against them when harsh and hasty steps to enforce for default in payment are unjust and inequitable, while by permitting full and prompt performance by the defaulting party no injustice results to either.
Time was not of the essence of this contract. Mani
Defendants’' counsel cite, and, in justification of Arthur’s stealthy entry in the nighttime, rely upon a line of cases involving forfeiture which sustain repossession thereafter by peaceable entry and retention by force, if necessary. These cases relate for the most part to questions between landlord and tenant in which the defaulting tenant never had any ownership or equitable interest in the title to the property as a vendee. In equity the vendor under a land contract holds the legal title as trustee for the vendee and trust relations are an element of the contract. While forfeiture may be contracted for as a basis for expeditious termination of those relations, drastic measures taken after forfeiture to seize possession without warning and thereby cut off the vendee’s last chance to redeem as recognized in summary proceedings, are not between vendor and vendee entitled in equity to as toler
“Three actions were open to the complainant upon the failure of the vendee to make payments, and the service of notice upon him declaring the contract forfeited: (1) A suit in equity to foreclose the contract; (2) an action of ejectment; (3) proceedings under the statute.- The first two actions exist independent of the statute. The third is purely statutory. The only violation of the vendee’s contract in this case was his failure to make pajonents. This brought him directly within the terms of the statute. He who seeks possession for violation of a lease or contract of sale for nonpayment of money due thereunder takes the remedy subject to the conditions imposed by the statute. The statute was designed to provide a speedy and summary remedy for obtaining possession of lands held over contrary to these agreements, and in doing so it also sought to give the lessee or vendee another opportunity to retain the benefit of his contract by payments within five days, where the failure to pay was his sole default.” Lambton Loan & Investment Co. v. Adams, 132 Mich. 350.
This contract gave plaintiff immediate possession of these premises at the time of its execution. From that time Ira Curry was in undisturbed legal possession, personally and through his employees and tenants, daily conducting a long established, going hardware business there, occupying for that purpose three of the four floors of the building until the closing hours of Friday evening, January 2, 1921. The fact that he was absent during that night, leaving his place of business closed and locked in the customary manner, did not change the nature of his possession. Arthur’s right of access to the locked store by the key he carried was only that of an employee in the line of his employment. His hostile night activities were confined to the store floor and basement in which he was employed. He effectually bolted all doors to that part
But aside from that technicality we think the trial court rightly held that under the circumstances of this case such stealthy closing down of his employers’ business by Arthur in the nighttime cannot in equity be recognized as a peaceable re-entry, and ouster of a defaulting vendee up to that time in possession of the property. Defendants were seeking possession on violation of a contract of sale for nonpayment of money due thereon and, as stated in the Adams Case, could have foreclosed the contract, brought' an action of ejectment or, more speedily, resorted to the. provided statutory remedy to recover possession by summary proceedings, which, under section 13253, 3 Comp. Laws 1915, as amended by Act No. 243, Pub. Acts 1917, gives the defaulting vendee 30 days after judgment of restitution to pay the amount found due, with costs. Within six days after notice of forfeiture and three days, including a Sunday, after the stealthy seizure of the business portion of the building, plaintiffs tendered payment in full, which was refused.
The decree of the lower court relieving plaintiffs from forfeiture on payment within 30 days of $8,482.12, with interest thereon at contract rate from June 7, 1920, is in substance affirmed, with costs of this court to plaintiffs, except that time for payment is extended to 30 days from filing of this opinion. In default thereof defendants will have decree of dismissal, with costs.