213 Mich. 664 | Mich. | 1921
The land contract, the subject-matter of this suit, the vendee being in default, has been
Are the facts in this case such as to call for this interference by a court of equity? The contract' was-first between defendant Ohler and one Boomsma. Boomsma, vendee, on August 1, 1918, assigned his: interest to plaintiff when there remained of the principal unpaid $3,000, payable $100 or more each year on August 1st, commencing August 1, 1919, and when there was due of interest and taxes $220. Including such interest and taxes, plaintiff to have such assignment paid approximately $1,000. The land was then incumbered to the amount of $2,100. The contract required interest to be paid semiannually. It required the vendee to pay the taxes. It contained a covenant against waste. It had the usual provisions as to forfeiture on default and as to re-entry.
The interest due February 1, 1919, was not paid. Plaintiff claims he was mistaken as to the time of payment'. The defendant Ohler having failed .in his efforts to secure payment of such interest and the taxes of 1918, on April 12, 1919, caused a notice of
On April 27, 1919, plaintiff tendered defendant Ohler the amount of interest due and $1.10' as costs of the forfeiture. The taxes were not paid. These were paid by defendant Ohler June 30, 1919. The bill was filed May 7, 1919. Decree was entered January 29, 1920. The trial judge found that the plaintiff had “suffered various and sundry people to commit waste and damage to said lands and the appurtenances, particularly the house and barn.” We think considerable damage to the buildings, land and fences was shown. If plaintiff be restored tO' his rights under the contract we find no strong expectation that the covenant as to waste will be hereafter performed. See Maginnis v. Knickerbocker Ice Co., 69 L. R. A. 835. The plaintiff seems to have held the property for trading purposes. As we have seen, if the contract had been in force on August 1, 1919, plaintiff might have paid “$100 or more” upon the principal, so the whole amount might have been paid. Equitable conditions under which plaintiff may be relieved of the forfeiture may be imposed. See Stickney v. Parmenter, 35 Mich. 237. Probably, had the only default been the failure to pay interest and taxes, plaintiff would have had decree, but the default as to waste was serious, resulting in impairment of the property, and it is with some reluctance that we have concluded to modify the decree and then only in a way that will protect the interests of the defendants.
The decree may be modified to relieve plaintiff from the forfeiture upon the condition that within 30 days from the entry of decree in this court he
And upon performance of all the aforesaid the deed to Byers will be set aside and defendant Ohler will execute and deliver a conveyance according to the contract and plaintiff will be restored to possession. Four of said amounts and items, being 1, 2, 3 and 5, if paid to the said clerk, shall be distributed under the order of the court to the defendants as their interests may appear. And in default of the performance of these conditions (1 to 6 inclusive) within the time limited the decree of the lower court will be affirmed, with costs of both court's.