105 Mich. 592 | Mich. | 1895
On June 9, 1888, the plaintiff and defendant entered into six, land contracts, identical in their terms, each for the sale of a lot by defendant to plaintiff. The price of each lot was $650, — $100 at the date of execution, and the balance on or before July 1, 1893, in equal annual payments of $100, payable on' January 1 in each year, together with 7 per cent, interest, payable semi-annually on the 1st of January and July. The vendee was also to pay all taxes and assessments assessed after the execution of the contract, and was to have possession of the premises while not in default. In case of default, the vendor was given the right to declare the contract void, and retain whatever might have been paid thereon, and aqy improvements made on the premises, and to take immediate possession of the land, and remove the vendee therefrom. The stipulations of the contract were to bind the assigns of the respective parties. The plaintiff paid on each contract $100 at the date of execution, and interest upon all of them up to July 1, 1888. Immediately afterwards the defendant, who held the legal title in trust for himself, .Mr. Hannan, and Mr. Avery, conveyed two lots each to Hannan and Avery, and also assigned the corresponding contracts to them, and paid to them each
' On October 4, 1888, the plaintiff executed and delivered to the Detroit Savings Bank an instrument whereby he assigned and' transferred to the bank all his right, title, and interest' in all six of these land contracts, the contracts to be held by the bank as collateral for certain drafts discounted by it for the plaintiff. This assignment, of which the defendant learned shortly after it was made, the bank still holds, and the indebtedness for which it was given is still unsatisfied. The bank first, leárned of the pendency of this suit two days before the trial, when it was informed of it by the defendant.
The plaintiff paid nothing further to defendant after making the above supplemental agreement, and on January 7, 1892, the defendant caused to be served both upon him and the Detroit Savings Bank notices of forfeiture in pursuance of the power contained in the land contracts, declaring the contracts void and ended, and all rights of the vendee, and of any one claiming through him, thereunder, forfeited' and terminated. Upon the' same day the defendant served upon the plaintiff and' upon the bank notices that thé' Idts' covered by the con-'
Under this state of facts it is contended that, whatever the plaintiff’s rights might have been had he not assigned the contracts to the bank, he is not now the owner of them, and is not in a position to maintain an action for the recovery of the money paid. Shortly after the contracts were executed, plaintiff made the following assignment to the bank:
“Detroit, Mich., October 4, 1888:
• “For value received, I hereby sell, assign, and transfer unto the Detroit Savings Bank of Detroit, Mich., all my*596 right, title, and interest to and in six (6) certain land contracts, all dated the 9th day of June, 1888, executed by and between Edward C. Van Husan, of Detroit, and myself, and providing for the sale to me by said Van Husan of lots 38, 89, 40, 41, 42, and 43 of Avery and Van Husan’s subdivision of lots Í6 and 17 of Mandelbaum’s subdivision of the easterly part of fractional section 36, town 1 south, of range 11 east, and the easterly part of section 1, town 2 south, of range 11 east, said lands being situate in the city of Detroit, aforesaid. The said contracts are to be held by said bank as collateral security for the payments, according to their terms, of certain drafts drawn by me, ás agent, on the Enterprise Coal & Exchange Co., of New York, and discounted by said bank for my account.
“S. D. Hooper. [Seal.]”
“November 29, 1889.
“I hereby agree, that the above-mentioned contracts shall stand as collateral to the note for $1,145 and interest, dated New York, November 15, 1889, payable three months after date, at the U. S. Nat. Bank, in N. Y., made by E. W. Bissel, and indorsed by E. N. Frisbie and myself, the said note being taken by the Detroit Savings Bank in discharge of the drafts referred to in the above assignment. Should the bank find it necessary in the. future to take a renewal or renewals, in whole or in part, of said note, this assignment shall remain in full force as security for the payment of such renewal note or notes.
“S. D. Hooper. [Seal.]”
Counsel for plaintiff admits that the bank got. whatever interest Hooper had in the contracts, but contends that when the defendant declared them void and at an end they were void ab imtio, and that it then resulted in Hooper having no further interest in the contracts, or further rights thereunder; that, therefore, the transaction was as though it had never been, so far as the lots were concerned, and that defendant had so much of plaintiff’s money the same as though he had borrowed it, or had receipted for it to another person on behalf of Hooper.
Under this assignment of the contracts, the bank got all the rights that Hooper had under them or by virtue of them. Had Hooper kept up his payments, the bank
Judgment is affirmed.