123 Mich. 467 | Mich. | 1900
In March, 1895, the complainant was, and had been for several years, the owner of land located in the township of Plymouth, in Wayne county,— subject, however, to two mortgages thereon, which were at that time held by Eliza H. Bird. These mortgages were originally given to secure the payment of $3,000 and $500, respectively. The complainant was also at this time the owner, under a land contract made in 1885 by A. S. Loomis, of Ypsilanti, of 28 acres of land in the township of Greenfield, Wayne county, which was situated in the suburbs of Detrpit, and which was regarded in 1895 as being very váluable for platting into city lots. On this land contract, which was originally for $5,000, complainant
The defendant’s counsel contend that the contract between complainant and defendant for the sale of a one-half interest in the land contract cannot be enforced or recognized, because, resting in parol, it is too indefinite and uncertain. It appears that, after the contract was made, the rent of the property was divided, and that the defendant paid a portion of the cost of improvements, so that there was a part performance of the contract, — in effect, a joint occupancy. The only circumstance that has occasioned doubt arises out of the understanding as to-the security to defendant for the $780 advanced in cash. It was not expected that this would be repaid, but it was intended that the complainant would pay the $4,500 to Loomis; and defendant, by the assignment of the Bird mortgages to him, had security for the performance of this obligation only partially. The defendant suggested a new mortgage to cover the amount of the unpaid purchase price, but complainant wrote in reply, suggesting that a writing giving to defendant a lien on the half interest of
Although the testimony is conflicting, we find that Shearer has contributed $3,650 to the purchase of the 28 acres; that Gibson has contributed $4,500; that they are equal partners in the venture, subject to the right of each to a return of his capital contributed out of the first money realized; that it is the duty of Shearer to pay the Loomis claim of $4,500, and that Gibson holds the Bird mortgages as security for the payment by Shearer of the Loomis claim of $4,500; that complainant should execute an agreement in writing binding his half interest in the 28 acres as security for the performance of his obligation to pay the $4,500 to Loomis.
Neither the bill nor the answer sets up the contract as we have found it. We are disposed to permit an amendment of the bill, and direct a decree in accordance with this finding. Under the circumstances, no costs will be awarded for the proceedings in the court below. Complainant will recover costs of this court.