140 Mich. 518 | Mich. | 1905
Complainant is owner of certain premises. Defendant is in possession under a land contract, of which he is assignee, containing the following provisions :
“ Said party of the second part also agrees to pay all taxes and assessments whatsoever that shall be taxed or assessed on said premises, or upon this contract, or upon the contract interest of said first party in and to said premises created by this contract, including the taxes for the year 1901, and hereby waive any and all claim or right against said party of the first part, her legal representatives or assigns, to any payment or rebate on, or offset against the interest or principal of said contract debt by reason of the payment of any of the aforesaid taxes or assessments. * * *
“It is mutually agreed between said parties, that said party of the second part shall have possession of said premises on delivery of this contract, and shall keep the same in as good condition as they are at the date hereof, until the said sum shall be paid as aforesaid; and if said party of the second part shall fail to perform this contract, or any part of the same, said party of the first part shall, immediately after such failure, have a right to declare the same void and retain whatever may have been paid on said contract, and all improvements that may have been made on said premises, and 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.”
Taxes' were assessed against complainant upon her interest in the land contract in the year 1903, which defendant refused to pay. There was no other default. On June 2, 1904, defendant called on complainant (his vendor) to make the monthly payment on the contract, when complainant’s husband and agent inquired if he (defendant) proposed to pay these taxes, either to the city treasurer or to complainant. The reply was, in substance, that he did not-propose to pay them to anybody. On the next day, or the day after that, without other notice, and without any demand for possession of the premises, summary proceedings were begun before a circuit court com
“ If the complainant was authorized to proceed before the circuit court commissioner to obtain possession without notice to the defendant, it must have been done under and by virtue of the provision of the first subdivision of section 11164, 3 Comp. Laws, such portion of which is applicable to this case reading as follows:
“ • The person entitled to any premises may recover possession thereof in the manner hereinafter provided in the following cases:
“ ‘ First, When any person shall hold over any lands or tenements * * * contrary to the conditions or covenants of any executory contract for the purchase of lands or tenements * * * and demand of the rent or possession of the premises is waived therein, in writing, and not included in the printed form of the lease or agreement.’
‘ ‘ It not being claimed on the part of the complainant either that the notice to quit which would have brought the subject-matter within the jurisdiction of the circuit court commissioner under the fourth subdivision of the section of the statute above quoted was given, nor that demand of possession of the premises was waived in writing and not included in the printed form of the agreement, inexorable logic forces the conclusion that the circuit court commissioner did not acquire jurisdiction of the subject-matter, and that consequently this court has no such jurisdiction, and could not, therefore, lawfully do otherwise than direct a verdict of not guilty.”
It is the claim of counsel for appellant that upon the
It results that the-judgment below was right, and is affirmed.