86 Mich. 246 | Mich. | 1891
This bill is filed for the specific performance of a land contract and for an accounting.
The defendant is now 82 years old. The contract set up in the bill is alleged to have been made in the year 1855. Defendant was at that time the owner and in possession of about 80 acres of land, lying now within the corporate limits of the city of Grand Eapids. The contract was in writing, and is claimed to have embraced 25 acres of this land. It has now been divided into city lots, the most of which have been sold and built upon. It is claimed that the land embraced in the contract is now known as blocks 1, 2, 3, 4, 9, 10, and 11 of Stocking & Smith’s subdivision of Stocking & Allen’s addition to the city of Grand Eapids.
The claim of the complainant is that about July 1, 1855, defendant sold to him an undivided half interest in this property for $2,500, $500 being paid down at the time of the purchase, the balance, $2,000, to be paid from the sales of the property; that is, the property was to be platted into lots and sold, and one-half of the proceeds to be retained by defendant and credited upon complainant’s purchase until $2,000 was paid, together with complainant’s share of taxes and expenses thereon; and that, when one-half of such sales should cover such amount, defendant was to deed complainant an equal un
It is apparent 'that some sort of written agreement was entered into between the parties in the year 1855, — the complainant claiming that it was made in July of that year, the defendant insisting that it was made in October. They also disagree as to its terms. The complainant also claims that there was no time within which the contract was to be fully completed and performed, and no rate of interest fixed therein. The defendant is also uncertain what interest the contract was to bear, but insists that the contract, by its terms, was to be fully performed within 6 years from its date. More than 35 years elapsed after the contract wa-. made before the complainant took any steps to enforce it, and 30 years have elapsed since the contract was destroyed, and the first attempt at its enforcement was by the filing of this bill in 1890. In the mean time defendant has sold a large amount of the property without consultation with the complainant. He has been in possession of the whole property, and there is nothing in the record showing that he did not deal with it as his own. He gave a large
Defendant claims that, after the contract was made, the complainant became indebted to him in large -sums of money; and that, though the contract was to expire within the six years, he offered to compromise with him, and deed him a small amount of the land, which was refused; that in 1867 or 1868 the conrplainant put the matter into the hands of Mr. Holmes, a lawyer of Grand Eapids, for settlement, and at which time the defendant denied that complainant had any rights in the land. It is not claimed by complainant that he attempted to assert any rights in the land from that time till about the time the bill was filed, except that he attempted to talk with the defendant about it some two or three years before that time.
Counsel for complainant attempts to excuse these laches. He says that from 1855 up to 1860 no sales of this property could be made for want of purchasers, and the property did’ not rise in value until after 1870, after which time defendant began to make sales, and sales have been made by defendant from time to time since that date; that the only right complainant could assert was the simple one of having the defendant deed him an equal undivided one-half interest in all of the property remaining unsold, after the payment of this contract; that sales of the property, and consequent payment, were postponed beyond the anticipation of the parties, which was the fault of neither party, and a right of action would not accrue to the complainant 'until the defendant should repudiate the contract, and when he so explicitly informed complainant; that complainant had no means of knowing the amount of sales made by defendant, or when the moneys due on the contract would be fully paid from
There is another matter of controversy between the parties as to what the contract provided; and that is, by the terms of the contract, who was to look after and make sales of the properties? We are satisfied that it was understood that complainant should look after the properties and make sales. He was engaged to some extent in the real-estate business, and the defendant was more or less away from home, looking after lands in other parts of the State for other parties.
We are satisfied, however, from an examination of the record, that it Avould be most unjust and inequitable to permit the complainant at this late date, after having slept for nearly 30 years -upon his rights, now to set up a claim to an interest in these premises. The contract was destroyed by fire in the year 1860. No copy was kept of it, which complainant well knew; and yet, from that date to the time of filing this bill, he has made no effort to enforce it, and during all that time he has known that it rested wholly within the recollection of himself and the defendant as to. its terms and conditions. His statement of its contents, as to the particular description of land embraced within it, the time of its performance, and the question of interest, is altogether too meager for this Court to say that he has shown by a preponderance of
Where the party has lain by, without performance on his part, until there has been such a change in the value of the property. as to render the contract unequal if made now*, the court of equity will refuse relief. Smith v. Lawrence, 15 Mich. 499.
We do not think that a mere assertion of a claim made by the complainant from time to time has any effect to keep alive a right which would otherwise be pre. eluded, as such claim has never been accompanied by any act to give effect to it. Mackall v. Casilear, 137 U. S. 556 (11 Sup. Ct. Rep. 178).
It is claimed by the complainant, however, that the contract created an express trust, by which the defendant was to hold these lands, and to dispose of them for the benefit of himself and the complainant, to account for the proceeds, and to deed over to the complainant
The case, in our opinion, however, dpes not rest upon this question. We think by its terms it was to be ended after the lapse of six years from its date, unless in the mean time complainant had made sufficient sales of the lands to meet his payments thereon, and that since that time it has been treated by the defendant as having no force.
Upon the hearing in the court below the circuit judge dismissed complainant’s bill, and we think very properly.
That decree must be affirmed, with costs.