Security Investment Co. v. Meister
183 N.W. 183
Mich.
1921
Check Treatment
Fellows, J.

(after stating the facts). Plaintiff by its bill claims that the deeds to Lefton were without consideration and fraudulent and were made to place the title out of Meister and in one in the service for the purpose of vexing and annoying it and that it had no аctual notice of their existence although conceding constructive notice from their record. Defendant Meister insists that they were given to secure money advanced and were in all regards free from frаud. As the debt secured by them has been paid, *341if one existed, and Lefton no longer has or claims to have an interest in the lots and is not in any way affected by these proceedings, we have no occasion to сonsider any of these claims. The matters adjudicated by the court- below and now before us on appeal concern only the plaintiff and defendant Meister. While several questions are discussed we think the controlling ones are within a very small compass.

There is no claim that there is any irregularity in the proceedings before the circuit court commissioner or that he was 'without jurisdiction-. There is no claim that defendant had mаde any payments he was not given credit for. There is no- claim that he was not in default or that he did not receive the notice of forfeiture. There is no claim that he was lulled into insecurity by any act or promise of plaintiff, or that he failed to make any defense before the commissioner because of any promise or act of the plaintiff. Indeed, he appeared personally and by counsel in that proceeding. In short, this record will be searched in vain for facts which establish grounds for equitable relief from-the judgment rendered by the commissioner.

What defendant’s counsel do urge upon the court is that plaintiff’s notice of forfeiture was ineffectual because at the time it was given it had not paid the specific tax required by Act No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4268 et seq.), and particular stress is laid upon section 8 of the act (§ 4275). Their further contentions are that еquity does not favor forfeitures, will not decree them, and will relieve from them. Much space is taken in the briefs of both counsel in the consideration of the question of the payment ‍​‌‌‌​‌​​​‌​‌‌​‌​‌‌​​‌‌‌‌​​‌‌‌‌‌​​​‌‌‌​​​​​‌​‌‌​‌‍of the specific tax provided for in the act above cited, it being the claim of defendant’s counsel that under the section noted the contract may not be “enforced” without its payment, and that the notice of forfeiture was an attemрt to “enforce” it, or at least was one of the *342steps in its enforcement and could not be had without the payment of the tax. This presents an interesting question and the briefs demonstrate that both counsel have devоted much time and ability to its consideration. When properly before the court it will receive the consideration its importance requires. But this is not a proceeding to enforce the contract. This is a proceeding to enforce and give effect to the judgment rendered by the circuit court commissioner. Whether this question was urged before the commissioner this record does not reveal. That it was available to dеfendant then, if at all, cannot be questioned. Here it is urged in a collateral attack upon the judgment there rendered. If there urged and overruled manifestly defendant’s remedy was by an appeal, and it must be equally manifest that defendant could not there withhold a defense to that proceeding for the purpose of making it available in equity as a basis of collateral attack! It is not the province of the court of еquity to examine the evidence adduced upon a trial at law and determine whether it supports the judgment. The circuit court commissioner had jurisdiction. If the judgment rendered by him was erroneous defendant’s remedy was by aрpeal.

This court has been quite liberal in relieving parties from forfeitures. See Lozon v. McKay, 203 Mich. 364; Hubbell v. Ohler, 213 Mich. 664. But plaintiff is not here asking that a forfeiture be decreed. What it is here asking is that effect be given a judgment in its favor against the defendant in a case where the defendant might have raised the question of the propriety of the forfeiture, and where even after judgment, and for 30 days thereafter, he had the right to redeem and be relieved from the forfeiture. Plaintiff is here asking the court to say that what has been done terminated the contract and defendant’s rights under it, and that any claims of defendant to the lots *343are but a cloud upon its title. The language of this court in Pendill v. Union Mining Co., 64 Mich. 172, is quite applicable. It was there said:

“Counsel fоr defendant further insist that the object of the bill is to declare a forfeiture of an estate for non-performance of a condition subsequent, against the rule that, equity will never enforce a penalty or forfеiture. We do not think this is the proper view to be taken of the bill. The bill treats the lease as a void incumbrance, under which the defendant company, ‍​‌‌‌​‌​​​‌​‌‌​‌​‌‌​​‌‌‌‌​​‌‌‌‌‌​​​‌‌‌​​​​​‌​‌‌​‌‍by its claims thereunder, clouds the complainant’s title. The court is not аsked to declare the forfeiture, but to ascertain whether or not a completed forfeiture exists, and, if so, to remove the cloud. The bill does not ask the court to do the thing, but to ascertain whether it has beеn done, and, if so, to declare its effect upon the title to complainants’ property.”

In the case of Lambton Loan & Investment Co. v. Adams, 132 Mich. 350, this court pointed out that the vendor in a forfeited land contract had three remedies: (1) a suit in equity to foreclose the contract; (2) an action of ejectment; (3) proceedings under the statute. We also pointed out that if he took the statutory remedy he took it subject to the conditions imposed by the statute which at that time permitted payment of the amount found due within five days after the rendition of the judgment (3 Comp. Laws 1897, § 11177). And in Smith v. Nelson, 165 Mich. 438, we held that this statutory right to redeem was at an end five days after judgment in the circuit court on appeal and was not prоlonged by an appeal to this court.

Section 11177, 3 Comp. Laws 1897, was carried into the judicature act without change (3 Comp. Laws 1915, § 13253). But the legislature of 1917 saw fit to extend the time for redemption where the proceеdings were upon an executory land contract and amended the section so that it now reads so far as important here (Act No. 243, Pub. Acts 1917):

*344“No writ of restitution shall be issued under the provisions of this chapter, until the expirаtion of five days, or in the case of a proceeding upon any executory contract for the purchase of real estate until the expiration of thirty days after the entry of judgment of restitution; and in casе of an appeal within that time, no writ of restitution shall issue until such appeal be determined in the circuit court; * * * Any writ of restitution and return of service thereof may be recorded in the office of register of deeds fоr the county in which said lands or tenements are situated and when so recorded shall be notice to all persons of the termination of all rights of defendant in or to such lands or tenements.”

A consideration of these statutory provisions shows the legislative intent to protect defaulting vendees and to give them a final opportunity to pay and be reinstated in their contract rights after a hearing as ‍​‌‌‌​‌​​​‌​‌‌​‌​‌‌​​‌‌‌‌​​‌‌‌‌‌​​​‌‌‌​​​​​‌​‌‌​‌‍to amount due and a fixing of that amount. Under our holdings the vendor who avails himself of this statutory proceeding takes it subject to this provision. Defendant now asks us to add a further condition, i. e.y that such judgment and the facts and law upon which it is based are all subject to review by a court of equity. Counsel for defendant rely on what is said in Davis on Michigan Practice before Circuit Court Commissioners, p. 318, quoted by this court in Gregor v. Olde, 209 Mich. 43, to support their contention. What the author then evidently had in mind and what this court сlearly had in mind as appears from the language of the opinion immediately following the quotation was that in a proper case of equitable cognizance such as the one then before us equity would аssume jurisdiction. The case then before' us involved a judgment which we held the commissioner was without jurisdiction to render and which was void. The case does not sustain the defendant’s contention.

To restate briefly: Defendant fоr over six months was in default in his payments; regular proceedings *345were had under the statute before the circuit court commissioner and judgment of restitution was rendered by him and the amount then due was fixed; the time given defendant under the statute after judgment in which to redeem, expired without payment of the amount so fixed; there is no accident, fraud, or mistake alleged. Under these circumstances the judgment rendered in a case where the commissioner had jurisdiction is a finality, and neither it nor the evidence upon which it is based may be reviewed by a court of equity. Defendant was not entitled to a decree for specific performance.

But it is insisted by defendant’s counsel; that if the defendant is not entitled to specific performance he is still entitled to ‍​‌‌‌​‌​​​‌​‌‌​‌​‌‌​​‌‌‌‌​​‌‌‌‌‌​​​‌‌‌​​​​​‌​‌‌​‌‍an accounting for the money paid before the contracts were forfeited. The contracts each contained the following provision:

_ “It is further agreed, by the parties hereto, that time shall be of the essence of this contract and that if the said party of the second part shall fail to make any of the payments; or perform any of the conditions above set forth, in the manner and at the time above limited therefor, the parties of the first part shall, immediately after such failure, have the right to declare this contraсt void, and to retain whatever may have been paid hereon, and the premises, together with the buildings and improvements thereon and may consider and treat the party of the second part as their tenant holding over without permission, and may take immediate possession of the premises and remove the party of the second part therefrom.”

A complete answer to this contention will be found in the recent casе of Niman v. Story & Clark Piano Co., 213 Mich. 397, where a similar contention was made. Mr. Justice Wiest, who wrote for the court, there fully considered such contention, reviewed the authorities in this and other States and concluded:

“We cannot raise a prоmise on defendant’s part to refund the payments in the face of plaintiff’s agree*346ment that the same should not be refunded. The ‍​‌‌‌​‌​​​‌​‌‌​‌​‌‌​​‌‌‌‌​​‌‌‌‌‌​​​‌‌‌​​​​​‌​‌‌​‌‍conditional sale agreement governs.” * * *

Neither of the defendants now have any interest in the premises in question. Defendant Lefton has been paid the debt the deed to him was given to secure; defendant Meister’s interest was terminated by the proceedings before the commissioner; and the failure to rеdeem within the statutory time. Plaintiff is entitled to a decree quieting its title. Gillespie v. Lee, 212 Mich. 213.

The decree of the court below will be reversed and one here entered in conformity with the prayer of the bill. Plaintiff will recover costs of both courts.

Steere, C. J., and Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit.