26 Mich. 399 | Mich. | 1873
Tbe defendant was proceeded against under chapter 211, of the Compiled Laws of 1871, which gives a summary remedy against persons bolding lands contrary to tbe .conditions or covenants of executory contracts of purchase. A complaint was made in tbe form prescribed by § 6707, and. after a bearing and trial before a commissioner, the case was taken to the circuit court by appeal. On the trial in that court, it appeared that defendant went into possession under an executory contract of purchase in. which one Holstein was vendor. To show bis own right, the complainant then offered in evidence a deed of tbe lands, made by Holstein to him, containing the usual covenants of warranty, and bearing date after tbe giving of tbe con
In support of the first and second objections to the deed, the defendant insists that this summary remedy can only be had between the parties to the contract, or where the vendee, having attorned to, or otherwise recognized, the right of an assignee, is immediately aware, when the proceeding is commenced, that the right of the complainant is one he is estopped from disputing. In other words, it is urged that the defendant should be apprised by the complaint and proceeding, what the nature of the case against him is, and that the statute never contemplated that he should be suable in this form by a stranger, of whose rights he may know nothing, whose complaint will give no information, and whose case he may consequently be unable to prepare to meet.
If there is any force whatever to these arguments,— which we do not concede to be the fact, — they should be addressed to the legislature to induce that body to withhold the remedy from assignees.
The statute makes no exception of their case, and it is not in our power to make any, and we must hold that any person who comes within the provisions of the statute, may institute the proceeding. The assignee of the contract is as clearly within those provisions as the vendor himself, and he establishes his right, and shows the privity between himself and the defendant, if on the trial he proves such facts as make out an estoppel, and preclude the defendant from disputing his right. The remedy does not depend
The objection, that this is an attempt to try titles before an officer having no jurisdiction for that purpose, appears to us equally untenable. This is not a proceeding in which titles may be tried. It is a proceeding to dispossess the defendant for the non-performance of a contract which estops him from disputing the title of his vendor, or of the vendor’s assignee. It is true that the validity, or sufficiency of the deed, may be questioned when it is put on evidence; but it would be its validity, or sufficiency as a transfer of the contract, and not as a conveyance of the title. Whether Holstein had title before the deed was given, or complainant afterwards, is immaterial.
It is said, however, that the deed is not effectual as a transfer of the contract, because, being with covenants, it
We are of opinion that the court erred in rejecting the deed, and the judgment’ must be reversed, with costs, and á new trial ordered. '