147 Mich. 599 | Mich. | 1907
(after stating the facts). Complainant insists that the court erred:
(1) In refusing to allow interest from the time the taxes were paid, rather than from the time of the final decree entered in the suit in the United States court.
(2) In dismissing the supplemental bill and refusing to enter a decree for the amount of taxes paid subsequent to the filing of the original bill.
(3) In allowing interest at 5 per cent., rather than the rate in force when the taxes were paid by complainant.
The defendants contend:
(1) That the court of equity had no jurisdiction, and that complainants’ remedy was at law.
(2) That defendants’ liability to pay taxes on the lands not involved in the suits brought in the United States court ended when the timber had been cut and removed therefrom, although the notice required by the contract was not given.
(3) That the liability for taxes involved in those suits ended with the taxes for 1892.
(4) If, however, the defendants were still liable to pay those taxes, the time of repayment was modified, and the same were not repayable until the final determination of the United States cases, October 24, 1902, and that interest did not begin to run until a reasonable time after demand.
(5) That a personal decree cannot be entered against the heirs of Thomas Nester.
The money consideration was divided into two parts, namely, the cash payments to be made at various times for the timber and the cash payments for taxes as they were assessed upon the land. It is fair to presume that the price for the timber was fixed with reference to the payment of taxes, just as the rate of interest in a mort-; gage is made with reference to the payment of taxes by the mortgagor. The times at which these taxes were to become due were fixed by the law. The only thing uncertain was the amount; and that became certain every year. The defendants’ theory is that the provision for the payment of taxes by the vendee was a covenant, and not a condition. The payment of taxes was just as much a part of the money consideration as was the payment of the price agreed upon. It was therefore a part of the purchase price. But, as was said in Monroe v. Bowen, 26 Mich. 523, the name to be attached to it is of little importance. Under the defendants’ theory the vendee might neglect to pay the taxes or to perform any of the other agreements by him to be performed, and coolly say to the vendor :
“ These are simply covenants on my part. Sue me at law. I have paid you the moneys particularly specified in the contract as the purchase price, and now propose to remove this timber without complying with any of the other agreements on my part, and leave you to your suits at law.”
Whether the defendants acquiesced in the jurisdiction of the court by answering and giving a bond by which the injunction was removed, and they allowed to proceed with their work, we need not determine. It is sufficient to hold that the court acquired jurisdiction by the original bill, and is not ousted of that jurisdiction by the fact that before the case was brought toa hearing all the property to which a lien might attach was removed by the defendants. 16 Cyc. p. 106; 11 Am. & Eng. Enc. Law (2d Ed.), p. 201; Lane v. Traction Co., 135 Mich. 70; Beal v. Chase, 31 Mich. 490, 534; Hall v. Nester, 122 Mich. 141; McLean v. McLean, 109 Mich. 258.
“ A breach of said covenant the damage to be recovered shall in no case exceed the consideration price for said timber herein mentioned, with interest thereon; and, in case of a breach of said covenant as to any part of said*611 timber, such damage shall not exceed a corresponding portion of said consideration price, with interest.”
In view of the rapidly increasing válue of the timber, the importance to the defendants of sustaining the title is apparent. It is a fair conclusion from the conduct of the parties, and as well from the evidence, that the defendants yielded to the opinion of the solicitors for the complainant in the course pursued by them. Whether that was the wiser and speedier remedy is not material for us to consider. Aside from this, there is no evidence in the record from which a court can fix the damages if any there were. Mr. Nester had other and adjoining lands he could lumber, and on January 8, 1890, his attorney wrote the manager of the Michigan Land & Iron Company:
“ If enjoined, he [Nester] has other lands in that vicinity upon which he is cutting, and upon which he could put all his force without causing him any great damage, I think.”
This question is, however, decided in Monroe v. Bowen, supra. In that case the grantor of the land reserved the timber if he should remove the same before a specified time. The land was attached by a third person and the owner of the timber enjoined from cutting it within the time specified. This court held that all contingencies and risks of embarrassment of this kind must be estimated by the parties in making their contracts. It is in evidence that the defendants could have obtained a dissolution of the injunction in the United States court by giving a bond. They insisted that the Michigan Land & Iron Company should furnish the surety. They claimed that at one time an agreement was made that they should furnish one surety and the Michigan Land & Iron Company the other. This was denied by the company, and no bond given. There was a tacit, if not an express, understanding that the matter of taxes should be adjusted on the termination of the suit in the United States court, and that meanwhile the Michigan Land & Iron Company should pay them. If complainant’s title to any of the
Furthermore, it is in evidence that the vendor’s agents talked with the respondents about releasing the land, that they replied that they would look it up and see what they could do, and that defendants made no replies, but that the only releases were those specified in the above statement of facts. The reason for such a notice is apparent. The vendor might desire to sell the remaining timber, or to sell the land to other parties. Any proposed purchaser would run the risk of buying a lawsuit with the defendants. They might insist that they had not completed their cuttings, and that their right to cut had not terminated
The decree will be modified in accordance with this opinion, with costs to the complainant.