143 Mich. 572 | Mich. | 1906
Complainants are vendors, and defendants the vendees, in an executory contract for the sale of lands, entered into August 31, 1901, under which defendants are in the possession. In March, 1905, vendors, after having given a three months’ notice of claimed forfeiture of defendants’ rights, with demand for possession, began an action before a circuit court commissioner to recover possession, the complaint setting out, generally, the possession of defendants, a tenancy, unlawful holding, and the right of complainants to possession. The commissioner found in favor of complainants, and found and stated the amount which was, by the terms of the contract, then due. Defendants appealed.
The case was heard at the circuit, and a verdict directed for complainants. No testimony was offered on the part of defendants. The journal of the court recites a verdict rendered by direction of the court and concludes as follows:
“Therefore it is considered that the said complainants do recover possession of the premises described in the complaint, * * . * and that a writ of assistance do issue; * * * that complainants recover their costs and charges.”
Counsel for defendants moved to set aside the verdict and judgment, for the reason that the amount due to complainants should have been determined by the jury. Complainants, by a writing filed in the cause, tendered a correction and amendment of the judgment entry, to the effect that there was due at the date of trial upon the land contract $791.65, and interest thereon from March 3, 1905, at the rate of 5 per cent, per annum, and also waived the right to interest from March 3, 1905, to the date of said correction and amendment. The court amended the judgment, and overruled the motion. The land contract provided for payment of the purchase price of $3,000 in installments, upon' payment of $1,000 of which, in accordance with the terms of the contract, a deed was to be given and mortgage taken for the balance
At the conclusion of complainants’ case, counsel for defendants asked the court to direct a verdict for defendants for the reasons:
2. That the evidence showed that no proper abstract had been furnished on April 1, 1902.
3. That complainants had not insisted upon time as of the essence of the contract and had accepted payments long after they became due; had placed a lien upon the premises. That the effect of all of these things was to relegate complainants to a court of equity for relief.
The court declined to then direct a verdict, and thereupon defendants rested their case. We are of opinion that the testimony warranted no other conclusions than were arrived at by the court in finally directing the verdict. The title of complainants to the premises is not questioned. Defendants have never been in position to demand of complainants any action beyond the furnishing of an abstract. The authorities relied upon by counsel for appellants, viz., Meshew v. Southworth, 133 Mich. 335; Getty v. Peters, 82 Mich. 661 (10 L. R. A. 465), are notin point here. In the first case cited, the vendors were seeking to compel specific performance by the vendees, and in the other the facts bear no resemblance to those appearing here. Indeed, in that case it was expressly found that the vendee was always ready to perform the contract, and that, at the time notice of forfeiture was given, the vendor had no title to the premises. We think no authority will be found for the broad claim asserted at the hearing that defendants may remain in possession without making payments, or being ready or offering to do so, because complainants have, since the contract period began, mortgaged the land.
The undisputed testimony shows clearly defendants’ assent to such mortgaging. There was no issue of fact to be determined by the jury. Whatever the rights of defendants may be, they do not include the right to continue in possession of the land.
The judgment is affirmed.