Belding v. Meloche

• Decision Date: 28 May 1897
• Citation: 113 Mich. 223,71 N.W. 592
• Court: Michigan Supreme Court
• Parties: BELDING ET AL. v. MELOCHE ET AL.

71 N.W. 592

113 Mich. 223

BELDING ET AL. v. MELOCHE ET AL.

Supreme Court of Michigan

May 28, 1897

Appeal from circuit court, Ionia county, in chancery; Frank D. M Davis, Judge.

Suit by Alvah N. Belding and another against Albert F. Meloche and others. From a decree for complainants, defendants Meloche appeal. Affirmed.

R. A Hawley, for appellants.

McGarry & Nichols, for appellees.

HOOKER J.

On May 2, 1892, the complainants sold to the Meloches (two of the defendants), upon contract, a business block in the village of Belding, at an agreed price of $36,000, to be paid in 120 monthly installments of $300, without interest. The contract does not expressly state that the vendees shall be entitled to possession, but does provide that, in case of default, the vendors may "elect to consider themselves released and discharged of and from any and all liability in any of the covenants specified to be done and performed by them, and all improvements made by the said parties of the second part shall be deemed forfeited as stipulated damages for the nonfulfillment of this contract and said parties of the first part, or their authorized agent, may, without notice to quit or demand of possession re-enter into and repossess the said premises, and the said parties of the second part, and each and every occupant hired by, through, or under them, to remove and put out; it being expressly understood that such failure of said second parties shall forfeit all claim, either in law or in equity, which might otherwise exist on the provisions of this contract in favor of the said parties of the second part." The vendees made default in the payments, and this bill of complaint was filed to foreclose their rights under the contract. At this time portions of the building were rented, and the bill prayed the appointment of a receiver, to receive the rents and profits of said premises, and such receiver was appointed, and has received said rents. A decree of foreclosure and sale was made, and, after the sale occurred, an order of confirmation was entered. No appeal was taken from any of the proceedings thus far. Subsequently, the complainants filed their petition, alleging that on March 9, 1896, a decree was entered for the complainants for the sum of $6,172.44 and costs, making a total of $6,648.30; that, at a sale of the interest of the Meloches in said premises, the complainants purchased the same for $3,000, and that there was a deficiency of $3,648.30; that the final account of the receiver, duly filed, shows a balance in his hands at the date of the report of $2,349.36, which, after the allowance of compensation to and disbursements by the receiver, would leave $1,856.98, which the petition prays may be applied upon the deficiency, and that it be declared that the remaining deficiency constitute a personal judgment, upon which execution may issue against the Meloches. A decree was made in accordance with the prayer of the petition, and the defendants Meloche appealed.

It is claimed-First, that the court had no authority to appoint a receiver to take the rents during the foreclosure, and that the moneys collected...