Barber v. Lang

• Court: Michigan Supreme Court
• Writing for the Court: SNOW
• Citation: Barber v. Lang, 237 Mich. 98, 211 N.W. 70 (Mich. 1926)
• Decision Date: 08 December 1926
• Docket Number: No. 39.,39.
• Parties: BARBER et al. v. LANG et ux.

237 Mich. 98

211 N.W. 70

BARBER et al.

v.LANG et ux.

No. 39.

Supreme Court of Michigan.

Dec. 8, 1926.

Appeal from Circuit Court, Wayne County, in Chancery; Parm C. Gilbert, Judge.

Suit by Herbert K. Barber and others against Edward P. Lang and his wife for specific performance of land exchange contract. From a decree for plaintiffs, defendants appeal. Decree dismissing plaintiffs' complaint entered.

Argued before the Entire Bench.

J. H. M. Alexander, of Detroit, for appellants.

Benjamin S. Pagel, of Detroit, for appellees Barber and wife.

Daniel R. Foley, of Detroit, for appellees Chamberlin Co. and Sheen.

SNOW, J.

August 3, 1925, Mr. Barber, one of the plaintiffs, and Mr. Lang, one of the defendants, agreed in writing to exchange properties. This agreement provided that Barber, on or before August 14th following, was to close the sale to Lang of ‘lots four and five (4) and (5) as subdivided by Edward G. Kay, fronting of Lake Shore (Lake St. Clair), and lying between Jefferson avenue and Lake St. Clair in the township of Lake,’ and agreed that:

‘The purchaser shall receive an abstract of title, certified as near to this date as practicable, showing marketable title and free from liens and incumbrances, except such building and other restrictions as are of record affecting this property, except (present incumbrance none).’

Mr. Lang refused to accept conveyance of this property, claiming that he did not receive an abstract of title showing a marketable title as provided for in the agreement, in that the abstract disclosed: (1) That there was no plat embracing the land to be conveyed, which had ever been placed on record. (2) That there was no Kay subdivision. (3) That the land consisted of two parcels, one owned by a stranger (Mr. Kay) and described by metes and bounds subject to an express easement.

The rule of law governing a contract provision of this kind is well settled:

‘If an abstract does not show on its face a merchantable title and it requires parol proof to establish the fact that the title is a merchantable one, a contract agreeing to furnish an abstract showing a merchantable title is not complied with, and the abstract itself must furnish the evidence that the title is merchantable.’ Lake Erie Land Co. v. Chilinski, 197 Mich. 214, 163 N. W. 929.

See, also, the following: Efrusy v. Mack, 219 Mich. 85, 188 N. W. 374;Ogooshevitz v. Arnold, 197 Mich. 203, and cases cited at page 208, 163 N. W. 946,165 N. W. 633.

This rule is not seriously questioned by counsel for plaintiff, but he calls attention to the following provision in the contract:

‘It is understood that the seller has title to lot 5 and that the balance of $3,000, approximately, on lot 4, will be taken care of by H. K. Barber if call is made for the balance, which is now liable to collection at the option of Edward G. Kay.’

This provision, counsel insists, modifies that ‘concerning the proofs of title by abstract.’ He claims that Mr. Lang knew that plaintiff was buying one of the lots from...