*1 TEETZEL v. ATKINSON. — Redemption — Equally
Vеndor and Furchasbr —Foreclosure Divided Court. proceeding equity In a to foreclose land contract for the sale containing provision giving a residence, purchaser deeree by six months from dаte of which to is sale redeem affirmed equally an divided court. Appeal Wayne; (DeWitt H.), from Merriam J. January (Docket Submitted 1940. No. Cal- 40,941). endar No. Decided March Re- 1940. hearing denied 1940. June by against
Bill Albert P. Teetzel and wife Olivia Lang Atkinson for of a land contract. foreclosure permitting redemption Prom decree of foreclosure plaintiff appeals. within six Af- months equally firmed an divided court. (-Frank counsel), G. W. Rosenbaum, Hatfield plaintiffs. Donnelly Lyon,
Atkinson, <& for defendant. proceeding equity North, of a defaulted land contract the court has inherent power grant redemption. reasonable time What redemption constitutes a reasonable time for necessity governed is the facts and circum- attending particular stances case. On provision fixing court’s decretal Atkinson. Teetizel except the be disturbed should inequitable a clear provision constitute so *2 controlling question on The abuse of discretion. provision is whether the this the vendors might re- that the vendee decree in foreclosure of the сonfirmation deem six months after within dis- of the a clear abuse sale constitutes in the trial cretion vested court. pur- undisputed that defendant
The facts are plaintiffs subse- $15,000a residence chased from .occupied quently her husband defendant and though There it was rented. later on homestead, monthly Subsequent payment $3,000. was a down payments of May total- 1938, of were made to $120 paid ing appears on It defendant has $2,040. thus of From $5,040. her contract the date $15,000 1936) expiration (November to the contract sale period ofiredemption of fixed the decree a years of 3 and 1 month intervened. amount paid by period plaintiffs during defendant to this equivalent approximately was the of rental of per month. In 1938 defendant rented this $136.20 property for a month. It is a common $90 matter of knowledge gross prop- type of rentals this cent] erty rarely per per exceed 10 annum. the- certainly may fairly instant ease it inferred the property reasonable rental value of not per exceed month. $125 Even at that rate defend- paid substantially ant an amount of the excess during total rental value the whole of her occupancy, notwithstanding under the she decree given six months after confirmation of sale within During which to appel- redeem. payments lee’s contract exceeded the rental fair property by value of the think more than $400. We provision decretal be said cannot part on tbе of discretion abuse a clear to constitute judge. affirmed, the circuit court entered The decree appellee. to with costs JJ., C. J., Wiest, McAllister and
Bushnell, J. with North, concurred Plaintiffs filed a bill foreсlose Sharpe, dispute. not land essential facts are contract. The piece real sold November for the on land contract defendant sum estate payment provided $15,000. The a down сontract monthly principal of $3,000 and instalments interest further less than and with the $120 agreement that on or before November 27, 1938, the *3 purchaser mortgage placed assume to on be premises by pay the and vendors full all sums due mortgage seller over and at that time. the above amount of the On or about November 1, defendant 1937, de- payments plaintiffs faulted in her and declared the May judgment contract fоrfeited. 9, On for 1938, possession plain- was recovered and the amount due August tiffs was determined to On 4, $919.45. judgment 1938, defendant redeemed from the possession. May After 9, 1938, defendant made no payments September furthеr plain- and 29, on 1938, present tiffs commenced suit. the The came matter hearing judge on January before trial the on testimony arguments were concluded on February 2, 1939, and on March 23, 1939, the court opinion rеndered an and found that were entitled to a mortgage decree of foreclosure in opinion cases. The stated: only pro- “The essential difference between this ceeding mortgage and a foreclosure is that here the Teetzel v. Atkinson. redemption. good period No reason the fixes court statutory why appears should be less than mortgage period foreclosures. months оn of six # # *8 may be entered. Vendee “A decree of foreclosure thirty days pay the amount due within should the may proceed entry to or vendors the decree mortgage of re- sale as in demptiоn foreclosures. from the date months at six is fixed mortgage fore- inas the sale confirmation the closures.” The decree 28,1939. March A decree was entered pay days gave within which to defendant namely, assume the $2,021.42,and arrears, amount mortgage Insurance to the Prudential $10,000 provided Company, mortgagee. also The decree pay upon the amount to failure defendant specified, the entire amount arrears within permission to to advertise due, become April but until after gave 1939, and defendant the sale to be held June 8, right possession, for six months to use and income redeem. after cоnfirmation of with sale Plaintiffs that it was an abuse and contend grant part trial court to of the of discretion defendant a within which to of six months premises. redeem said every attempted case have nоt to define
Courts various discretion; rather, constitutes abuse of what guides principles direct established as have been *4 Lange, courts. In Morocco v. 266 the actions of that there had been an abuse 238, we held whether depended upon of discretion of the all of the circumstances particular case. In Rousso v. First National A.), (C. Bank Detroit 287 Fed. it was held C. injunction that not be disturbed unless it an clearly appears that the court below has exercised Bepobts. 292 wholly wrong upon com it vested
the discretion prehension abuse case. The or of the facts law the palpable in order оr be clear must of discretion reversing reviewing lower justify court discretionary orders. court’s- Furniture Manufac Rapids Rapids v. Grand Grand turers Ass’n of Graeger v. Mich. 685; Exhibitors, Guild of Hager, Pikstein, Nissenbaum 275 Mich. Mich. 28. Cooper
In said: 161 Mich. we Carr, part), (on “To warrant such interference our ought plain upon so abuse of the facts consideration judge acted, trial un- which the an justification say prejudiced person can there no ruling made.” or excuse for the Dodge Judge, v. Van Buren Circuit 118 Mich. 189,195, we said:
“It true that courts hesitate to review the action judge involving of a trial matters of discretion, and necessary may justice will not be done. so unless it is do * * * 'This discretion, no however, is arbitrary an one, means and is to be exercised ac- principles with established cordance of law ” equity.’ p. it In 3 Am. is said: Jur. rule, “This rather rule, or this statement give judge entirеly does not an free hand might discretionary
in what be termed matters. The judicial may exercise of discretion which not be re- implies judgment, viewed conscientious not arbi- trary par- takes account action, of the law and the ticular circumstances of the case, is directed judge just the reason and conscience of the toward a ’’ result. accepted Michigan concerning' rule in in land contract cases is stated *5 597 v. Atkinson. Tbetzel Shady Summers, 255 Co. v. Beach Land in View we said: Mich. where in matter is stated of the whole “The conclusion Christy
Drysdale
It is also a in the same manner should not be foreclosed mortgage. quote R. 77 A. L. 273:
We
Bowling (1898),
pointed
in
v.
117
out
Jones
“It is
very
there is a
markеd difference be
Mich.
tween the
vendor under a
held in the
estate
interests
real
mortgagee;
land contract and a
why a land contract should
difference will illustrate
mortgage.
In the
the same as а
not be foreclosed
mortgage,
mortgagee
the limita
the
knows
case
possession by
put
There
tions
is no such limitation
land contracts. Unless the vendee
his
the statute.
placed upon the
vendors
right
given
is
the
possession by
it.
the contract he is not entitled to
possession
given
right the vendee is
the
Where
while not in
the vendor
default, case of default
given
possession
the
to take immediate
proper
premises,
that,
not
to hold
it would
be
part of
sale of
vendee,
on the
after default
lapse
pe
of a
not made until the
could
mortgage.
of a real estate
Such
riod similar
holding
into thе contract condi
would be to read
they
parties
contemplated
when
tions
Craig connection,
Black
it.
in this
See,
made
Christy
Drysdale
(1930),
P. J.
(1929),
In the case at bar the trial court was in error ruling redemption should be the statutory period same as the pre- of six months mortgage scribed for foreclosures. It was an abuse of discretion. The decree was entered March 28, 1939. prеmises The date fixed for the sale of the was June 8, 1939. The cause should be referred to the trial court to set a prem- date for the sale of the ises and fix a not to exceed 30 days from the date оf sale. The order should also provide premises the event the are not re- deemed the defendant shall forthwith account to profits for all rents and derived from said July from and after 8, 1939, the maximum period in which per- defendant should have been mitted to redeem. Plaintiffs should recover costs. and Btttzel, JJ., concurred Potter, Chandler, with Sharpe,