Wiegert v. Franck

• Decision Date: 28 January 1885
• Citation: 56 Mich. 200,22 N.W. 303
• Court: Michigan Supreme Court
• Parties: WIEGERT v. FRANCK.

22 N.W. 303

56 Mich. 200

WIEGERT v. FRANCK.

Supreme Court of Michigan

January 28, 1885

Appeal from Wayne.

Henry M. Cheever, for plaintiff.

Wm. B Jackson, for defendant and appellant.

CHAMPLIN J.

Complainant filed his bill to compel defendant to specifically perform the following contract:

"This agreement, entered into this fifteenth day of January A.D.1880, between John C. Franck, of the township of Ecorse, Wayne county, Michigan, party of the first part and Louis Wiegert, party of the second part, of the same place. The party of the first part, for and in consideration of the sum of eighty dollars per acre, agrees to sell, assign, and set over to the said party of the second part a strip of land four rods wide along the St. Cosme line road; or, if necessary to cover a certain ditch or water-course, the said strip of land is to be five rods along said St. Cosme line road, or any other width not to exceed said five rods along said St. Cosme line road. Said strip of land is to be surveyed, and is to be of uniform width throughout, and extending to the rear of said farm. And it is further agreed that all suits now pending between said parties, either of a civil or criminal nature, are to be discontinued.

"That said John C. Franck reserves to himself the wood now cut and the crop of wheat now growing on said strip of land, and allows said Louis Wiegert to enter upon said strip of land to open the ditch or water-course through said wheat-field. The terms of this agreement are to be fulfilled before the first day of September, A.D.1880. The strip of land above mentioned is situate, lying, and being in the township of Ecorse, Wayne county, Michigan, and known and described as the westerly part of private claim number forty-three, (43,) eighty-three, (83,) and ninety-two, (92.)

"JOHN C. FRANCK.

"LOUIS WIEGERT.

"Witness: HENRY N. BREVOORT.

"Dated this fifteenth day of January, A.D.1880."

The bill of complaint states "that said John C. Franck was, on the fifteenth day of January, A.D.1880, the owner in fee of the following real estate, situated in said county, to-wit: A strip of land off of the westerly part of private claims numbered forty-three, eighty-three, and ninety-two, said strip being five rods wide on the St. Cosme line road, and of sufficient width to cover a ditch or water-course running across one of said private claims, and said strip being about five rods wide, and being two and 20-hundredths acres of land;" that on said day defendant, as such owner, contracted in writing to sell the same to the orator for the sum of $80 per acre, which contract is made a part of his bill of complaint, and set out as an exhibit, being the same as above set forth; that payment was to be made by the orator before September 1, 1880, and that on August 31, 1880, he tendered to defendant full payment for said strip of land under said contract, being $175, and demanded from said defendant a good and sufficient deed therefor; and that defendant utterly refused to receive the money or make a deed; and that again on the eleventh day of November, 1880, he again caused a tender of $175 to be made to defendant, and at the same time tendered a warranty deed and requested defendant to execute the same, when he again refused to receive the money or execute the deed; that the land is worth more than $100 in value; that on October 16, 1880, he took possession and built a shanty, and defendant thereupon forcibly ejected the orator and destroyed the shanty, and refuses to permit the orator to occupy the land, or to execute a deed. Prays for an answer under oath, and that the agreement may be specifically performed, and defendant decreed to execute a warranty deed of said premises, and to surrender possession thereof to the orator; declaring himself ready and willing, and offering, to perform the said agreement in all things on his part and behalf.

Defendant answered under both, admitting that on the twentieth day of January, 1880, he was the owner in fee of the strip of land described in the exhibit annexed to complainant's bill but he avers that he then was and still is a married man, and has a wife still living, and that said strip of land was and is a part of his homestead, upon which, at the date of said contract, he then was and still is living with his said wife and family as a homestead; and that, by reason of the premises, said contract was made null and void at the time of the execution thereof; and that his said wife refuses to join in any conveyance of said land to said complainant, or to release her right of dower therein, and, by submitting, he is unable to make a perfect title to said complainant of said premises. That he admits that he executed the contract referred to in section 3 of said bill; but he is advised by his counsel, and avers the fact to be, that said contract is absolutely void, for the reason hereinbefore set forth, and for the further reason that the description of the strip of land then attempted to be conveyed is so vague and uncertain that the same cannot be specifically performed. That he admits the facts set forth in section 4 of said bill, that payment was to be made before September 1, 1880. That he admits that complainant tendered him $175 on or about the thirty-first day of August last, but he was unable to make a good and sufficient deed thereof to said complainant; and he further avers...