Baxter v. Aubrey

• Court: Michigan Supreme Court
• Writing for the Court: [41 Mich. 16] COOLEY, J.
• Citation: Baxter v. Aubrey, 41 Mich. 13, 1 N.W. 897 (Mich. 1879)
• Decision Date: 04 June 1879
• Parties: DAVID P. BAXTER v. ELIZABETH AUBREY.

1 N.W. 897

41 Mich. 13

DAVID P. BAXTER v. ELIZABETH AUBREY.

Supreme Court of Michigan

June 4, 1879

In an action to recover money paid upon a contract to "execute and deliver a good and sufficient warranty deed" of certain land, held, that the presumption would be that the vendor had title to the land, and to avoid the effects of a tender of a deed the burden was upon the vendee to show defects in vendor's title. Where the subject-matter of an action has been confessedly in litigation in a former action and a party relies on the fact that the merits were not passed upon in the former action, the evidence ought clearly to show that fact.

COOLEY, J.

Aubrey sued Baxter to recover the purchase price of lands sold to him by executory contracts, and which by the terms of the contracts were to be paid for in annual installments. The installments were all due when suit was brought, and Aubrey had tendered the customary warranty deed and demanded payment.

Two principal objections were made to the recovery--First, that Aubrey did not give evidence that the deed she tendered would convey the land; and, second, that the matter had become res adjudicata in a former suit. The circuit judge held neither objection well taken, and Aubrey had judgment.

I. The contracts obligated the vendor, when the purchase price was paid, to "execute and deliver" to the vendee "a good and sufficient warranty deed." Baxter claims that this means a warranty deed conveying the title to the land, and that it was not enough for the vendor to tender a deed sufficient in form, but she must go further and show that she had at the time a title which the deed would convey. We think, however, if the vendee accepts a contract in which the ownership of the vendor is assumed, and agrees to pay for the land without requiring the vendor to produce evidences of his title, the burden will be upon him to show defects. The presumption will be, in the absence of any showing, that he satisfied himself respecting the title when he made his bargain. Dwight v. Cublee, 3 Mich. 566; Allen v Atkinson, 21 Mich. 361.

II. The second objection arises upon the following state of facts After all the installments had fallen due, Aubrey brought suit on the contracts, and was defeated on trial, and final judgment passed against her. Subsequently she brought this suit; the cause of action being admitted to be the same.

On the trial of this cause she undertook...