9 Mich. 253 | Mich. | 1861
The bill in this cause is filed to redeem certain premises covered by securities now in the hands of the defendant, Peter C. Niver, a part being subject to an ordinary mortgage, and in a part of which he holds the legal title, and an equitable mortgage of the equitable title.
March 10, 1852, complainant, owning one undivided third of the south west quarter of section 27, and of the north west quarter of section 84, in town 9 north of range 9 east, in Lapeer county, upon which was a saw mill, purchased the remaining two-thirds of George and Henry Niver, by an ordinary land contract, payable in annual payments, the last being a sum of fourteen hundred dol
John Shafer, the complainant, was also the owner in fee of two quarter sections of lands immediately adjacent, and constituting, with the two quarter sections described, one section, namely, the south east quarter of section 28, and the north east quarter of section 33 of the same town and range.
June 1, 1854, complainant entered into a contract with Byron W. Clark, in the following terms:
“Memorandum of an agreement, made and entered into on this first day of June, a. d. 1854, by and between John Shafer, of Lapeer, Lapeer county, and State of Michigan, of. the first part, and Byron W. Clark, of the city of Buffalo, in the State of New York, of the second part, Witnesseth, that the said Shafer agrees to sell and deliver to the said Clark, at Lower Saginaw, in the State of Michigan, in the months of May and June next, all the merchantable pine lumber manufactured at his mills in the township of Marathon, in the county of Lapeer aforesaid, but not to be less than one million feet, of which one-fourth is to be clear and fourths, at the following prices, subject to eastern inspection : clear at sixteen dollars and fifty cents per thousand feet, and common at six dollars and fifty cénts per thousand feet. And the said Clark agrees to receive of the said Shafer the above mentioned lumber at Lower Saginaw aforesaid, at the time above mentioned, and pay him for the same at the rate of sixteen dollars and fifty cents per thousand feet for the clear, eleven dollars per thousand feet for the fourths, and six dollars and fifty cents per thousand feet for the common, upon the inspection, piling, and delivery of the lumber as aforesaid; and the said Clark agrees to advanc to the said Shafer the sum
“And it is further agreed that the said Clark is to be allowed interest upon all moneys advanced to said Shafer, until the delivery of said lumber at Lower Saginaw as aforesaid. It is further agreed by and between the parties
John Shaker, [l. s.]
Byron W. Clark, [l. s.]”
To secure the performance of this contract, complainant executed a mortgage of the half section owned in his own right, and of the one-third of the other half section which was also in his name, and made an equitable mortgage of the two-thirds interest held under contract from George
As the transactions are somewhat complicated, the first question which arises is whether the land contract became absolutely forfeited by non-fulfillment at the day of payment. The parties had not treated time as essential before, and there is nothing peculiar in the contract itself, which removes it from the ordinary rule. We think, without dwelling upon the circumstances alleged to have made a tender or its equivalent, that the parties were not authorized to regard it as absolutely forfeited beyond redemption. In this respect, we think the decree below allowing a redemption of it was correct.
But the principal controversy has been concerning the extent of Peter C. Fiver’s mortgage claim, which covers the land under contract, as well as the rest. It was held below that complainant had fully performed, and therefore that the mortgage wras cancelled. Defendants claim that he was in default, and is liable for damages, and that the decree in this respect is erroneous.
Clark’s duty under the contract w'as to advance at its date one thousand dollars; to advance $200 upon every hundred thousand feet sawed and put up at the mill between August 1st and November, 1854, and $400 per hundred thousand feet on all sawed and put up thereafter, the balance being payable on delivery at Lower Saginaw. Shafer agreed to have two hundred thousand put up in August. In case he did not deliver the lumber in time at Lower Saginaw, he was at liberty, on paying $1000, to have the time postponed until the middle of October.
Clark advanced the first $1000, and also a further sum of $100, which was not due under the contract in August
It appears from the testimony of Mr. Wattles, that in March or April, 1855, Clark and Shafer had a settlement upon the basis of ending the contract, and that Shafer agreed to pay Clark for his advances twenty-five hundred dollars. The amount then due was only the sum of $1100 and interest, for advances. But it is manifest from the testimony of Bonesteel, that Shafer did not expect to bo able to carry out the contract, or to raise the $1000, upon which it was to be extended, and it is also in proof that the contract was likely to be a losing one to him. Clark, however, appears to have been anxious to get out of it also, probably from want of means, as there is some testimony bearing that way. At the end of May, it appeared that all the parties were in Buffalo, where Clark sold out to Peter C. Niver (through Henry Niver) for $2250, after firrt offering it to Shafer on the same terms. Before Niver purchased, Shafer represented the interest as worth $2500.
Looking at the whole case, we are of opinion that both Clark and Shafer regarded the contract as at an end m April, and that the only claim left was for damages. Although the agreement then made by way of compromise may have been deficient in some legal particulars, yet inasmuch as Shafer represented to Niver that Clark’s rights were worth $2500, ■ we think the purchase so made should
Whatever might have been the effect of Shafer’s acts towards performance, had the contract remained open, they were evidently done without any bona fide expectation that they would be anticipated, and they were plainly designed to secure an unfair advantage. They can not, in the view we have taken, affect the case, and we are not called on to determine what they might have amounted to if material.
The decree below was erroneous in not allowing the mortgage lien of the defendant, Peter C. Niver. It must be reversed, and a new decree entered, establishing the amount of the mortgage against the complainant, executed to Byron W. Clark, June 1, 1854, on his estate in fee at |2500 and interest, from June 1, 1855, and the equitable lien on the land contracted, for the same debt, in addition to the balance of purchase money of fourteen hundred dollars and interest from June 1, 1855. Six months from July 11, 1861, are to be allowed for making payment, and in default, the land is to be sold, on the usual terms of mortgage sale, first selling the contracted property and applying the proceeds to the contract of sale, and the balance on the debt of $2500 and interest; and if there be any further deficiency in the latter debt, making it up by sale of so much as is necessary of the lands covered by the trust mortgage. The defendants are entitled to costs of both courts.
