Bartos v. Czerwinski

• Decision Date: 12 November 1948
• Docket Number: No. 101.,101.
• Citation: 323 Mich. 87,34 N.W.2d 566
• Parties: BARTOS et ux. v. CZERWINSKI.
• Court: Michigan Supreme Court

323 Mich. 87

34 N.W.2d 566

BARTOS et ux.

v.CZERWINSKI.

No. 101.

Supreme Court of Michigan.

Nov. 12, 1948.

Appeal from Circuit Court, Wayne County, in Chancery; Guy A. Miller, judge.

Action by Frank Bartos and Mary Bartos, his wife, against Blanche Czerwinski to compel specific performance of written agreement for sale of certain real estate. From decree denying relief, the plaintiffs appeal.

Decree modified, and, as so modified, affirmed.

Before the Entire Bench.

Riseman, Lemke & Piotrowski, of Detroit, for plaintiffs and appellants.

Thaddeus M. Machrowicz, of Detroit, for defendant and appellee.

CARR, Justice.

Plaintiffs brought this action to compel the specific performance of a written agreement for the sale of certain real estate in the city of Detroit. The instrument in question, which was dated October 3, 1945, was in the form of an offer and acceptance. Plaintiffs undertook to pay the sum of $6,300 for the property described with the sum of $200 down to apply on the purchase price, such amount ‘to be returned should proposition be rejected by owner, or prior sale, of said property; or should the title be found unmarketable.’ The offer further provided for closing the deal within ten days from the date of delivery of an abstract of title. The acceptance agreed to the terms of the offer and contained an express provision that defendant would furnish ‘abstract of title certified to date, showing marketable title.'

Following the execution of the agreement an abstract was delivered to plaintiffs for their examination. It was submitted to an attorney who gave his opinion to the effect that the title shown by the abstract was marketable. Thereafter plaintiffs submitted it to their attorney, Mr. Piotrowski, who came to the conclusion that there was a flaw in the record title of such character as to render it not marketable in the ordinary acceptance of the term. The abstract in question is not in the record, in this court, and it does not appear that it was introduced in evidence on the hearing in the trial court. However, a witness on behalf of the plaintiffs, an employee of the Wayne County Tract Index Department, testified with reference to the title as shown by the records of said department. It is a fair inference from the record here that the alleged defect in title shown by the abstract arose from certain conveyances to which the witness testified, and concerning which there seems to be no dispute. In 1922 the property in question was conveyed by warranty deed to Richard S. Hickey and Derk Eppinga, said deed being recorded October 30, 1922. In January, 1923, by warranty deed recorded January 25th of said year, the grantees in the previous deed conveyed to the Peoples State Bank of Detroit. By a quit claim deed dated December 28, 1927, Eppinga conveyed his interest in the property to Hickey, the instrument being recorded January 7, 1928. The record further disclosed a quit claim deed dated December 29, 1927, from the Peoples State Bank to Hickey and Eppinga, recorded January 10, 1928. Thereafter Hickey made conveyance of his interest in the property, but it does not appear that Eppinga did so. Plaintiffs' attorney came to the conclusion that there was, or might be, an outstanding undivided one-half interest in the property, held by Eppinga or others claiming under him, and advised plaintiffs accordingly.

It appears that the plaintiff Frank Bartos became ill and went to Arizona while the matter was pending. Subsequent negotiations were carried on between Mrs. Bartos and her attorney on one side, and defendant and her son, on the other. On behalf of plaintiffs it was insisted that some action should be taken to clear the title, plaintiffs clearly indicating that they would not accept a conveyance unless the alleged defect was obviated or protection afforded them in some manner against a possible subsequent attack on the title to the property. A quit claim deed was prepared for Eppinga's signature, and defendant's son contacted him, presumably for the purpose of having the deed executed if that action could be brought about. However, Eppingastated, in substance, that he did not care to be bothered, and it does not appear that any further attempt was made to procure from him a release of any interest that he might have in the property in question. No further action was taken by defendant with reference to the matter. The record shows, however, that, in a conversation between them, defendant and Mrs. Bartos reached an agreement with reference to the return of the deposit; but the agreement was not carried out for the reason that defendant insisted on a return of the preliminary contract for the purchase of the property or some form of receipt for the money that would release defendant from liability.

In their bill of complaint plaintiffs alleged that defendant was in position to convey good title to the land. On the trial, however, they reasserted their prior position that they would not accept a conveyance unless such action was taken by the defendant as would render the title marketable. It thus appears that plaintiffs sought not merely a conveyance of the property as the averments of the bill of complaint would suggest, but rather a decree that would require defendant to clear the title to the property to the satisfaction of the plaintiffs, and then make conveyance in accordance with the preliminary agreement. The trial court came to the conclusion that plaintiffs were not entitled to such relief, that there was a variance between the bill of complaint and the proofs offered by plaintiffs on the trial, and that the alleged defect in defendant's title to the property was not of serious character. Accordingly relief was denied. From the decree entered, plaintiffs have appealed.

Whether defendant's title to the property was actually not marketable is not clearly shown on this record. The deed from the Peoples State Bank to Hickey and Eppinga was dated December 29, 1927, while the conveyance from Eppinga to Hickey was dated on December 28th preceding, but there is nothing otherwise in the record to indicate when the instruments were actually delivered. It is conceivable, of course, that the conveyance by Eppinga was actually...