82 Mich. 661 | Mich. | 1890
This is an action of ejectment. It was tried before the circuit judge of the Kalkaska circuit court without a jury.
He finds that June 4, 1885, Addie B. Getty, wife of the plaintiff, entered into a contract with George W.Peters, husband of the defandant, to sell him lots 7 and 8 in the village of Kalkaska for $200, payable $25 down, and the balance on or before three years from date, with interest at 10 per cent., payable annually. Peters was to pay all taxes assessed on said premises from said date, and was to keep the buildings insured for the benefit of Mrs. Getty. When the contract was fully paid and performed, Mrs. Getty was to convey the premises to Petex-s free and clear of all liens and incumbrances, save those suffered by Peters to accrue after the making of the contract. Peters paid the $25, and went into possession. At the time, Mrs. Getty had a clear title to lot 8, but not to lot 7, the legal title to which was then in one David E. McVean, subject to a mortgage to David Ward. A foreclosure of this mortgage was commenced in chancery April 14, 1885, resulting in a sale and conveyance of the same to William C. Ward, June 14, 1886. Ward quit-claimed to the plaintiff April 25, 1888. A warranty-deed of both lots was given by Mrs. Getty to plaintiff June 23,
After the death of Mr. Peters, and in the fall of 1886, plaintiff went to defendant, and wanted to know if she was going to carry out the contract, and asked her to furnish $50 with which to buy the title of Ward to lot 7. She refused to furnish the $50. At this time there was nothing due upon the contract. In 1886 the premises were sold for the taxes of 1884, — taxes becoming a lien on the land before the contract was made. The defendant bid in the lots for these taxes, paying therefor $5.60. November 12, 1887, she received her tax deed, and put it on record December 14, 1887. She paid the taxes for 1886 on lot 8, and for 1887 on both lots, and the village taxes for 1887 and 1888. Plaintiff was supervisor in 1886, 1887, and 1888. He assessed both lots to defendant in 1886; in 1887, lot 7 to her, and lot 8 to himself; and both lots to himself in 1888, and paid the taxes for that year. Some time in 1887, and after plaintiff had heard of the procuring of the tax title by defendant, he served a notice upon her—
*665 “To the purport and effect that she had forfeited all rights under said contract by non-performance of the conditions thereof, and demanding possession of said premises from her.”
The court finds that, allowing the sum defendant paid at the tax sale upon which she received her tax deed as a payment upon the contract, there was due June 4, 1887, as interest upon the same, $7.60. Before commencing this suit, which was begun October 1, 1888, no other notice but the one already mentioned was served upon the defendant or her son. After the death of Peters, no payment of the principal or interest on the contract was ever made to Mr. or Mrs. Getty, and the buildings on the premises were never insured for their benefit.
The court further finds that the defendant was unable to effect such insurance, owing to the fact that the building was not such a risk as the insurance companies, doing business in Kalkaska, would take; that the plaintiff knew when he received his title of the full extent of defendant’s rights under the contract; that he gave no notice of. his acquiring the title from Ward; that no demand was ever made upon the defendant for any amount due ■on the contract, and neither she nor her son ever had or sought any interviews with plaintiff in regard to the contract, and never offered to pay any sum of money on said contract, or for getting a deed of said property on any terms, since January 11, 1887. On that date defendant and her son attempted to make some arrangement about fulfilling the contract, and receiving a good title to the land. This was done at the request of his mother. He and plaintiff went to a law-office, and a warranty deed was drawn up by Willis B. Perkins with Getty and his wife as parties of the first part, and Albert O. Peters as party of second part. The consideration was put at $150.
The circuit judge also found that—
“ The defendant has been ready at all times to perform said contract on her part, as the widow of said George W. Peters."
Judgment was rendered on these findings for the defendant. Error is assigned upon some of these findings, that they are not supported by the evidence. All the tes
The defendant pleaded not guilty to the declaration in ejectment, and also served a notice that she would claim on the trial as follows:
“Compensation for buildings erected by her, and that her expense and other improvements made on the said lands described in the plaintiff’s declaration, which said improvements were made by said defendant since her possession and occupancy of said premises, and said defendant will also show that she has been in the quiet, peaceable, and notorious possession of said premises since the 4th day of June, 1885, by virtue of a tax deed and land contract, in good faith, and will request the jury to find whether the said premises have been actually and peaceably occupied by the said defendant, and the time of such occupation, and to determine the increased value of the premises by reason thereof.”
It is claimed by plaintiff’s counsel that the defendant relied on the tax title; that the same was shown to be void; and that after setting up an adverse claim of the tax deed she was estopped from claiming under the land contract. This claim is not tenable from the findings of the court or the evidence in the case; nor did she rely on the tax title upon the trial. It appears that she bid in the property at the tax sale to protect her possession and title under the land contract.
The other main contention is that the defendant had never offered to perform the contract or make any payments thereon after her husband’s death, and that her rights under the contract had been duly terminated by notice. But the circuit judge finds that she was always ready to perform the contract, but that no demand was
“ Eight to declare the same void, and retain whatever may have been paid on such contract, and all improvements that may have been made on said premises, and*669 may consider and treat the party of the second part as her tenant, holding over without permission, and may take immediate possession of the premises, and remove the party of the second part therefrom."
Before the defendant could be ousted from her legal possession under this contract in an action of ejectment, or in summary proceedings, it was necessary for plaintiff to notify the defendant, under the circumstances of this case, that he had full title to the premises, and could perform on his part, and demand payment upon her part.
The judgment is affirmed, but without prejudice to any further proceedings to recover the land after forfeiture as above indicated.