Clark v. Woodruff

• Citation: 90 Mich. 83,51 N.W. 357
• Court: Michigan Supreme Court
• Decision Date: 05 February 1892
• Parties: CLARK v. WOODRUFF et al.

51 N.W. 357

90 Mich. 83

CLARK v. WOODRUFF et al.

Supreme Court of Michigan

February 5, 1892

Appeal from circuit court, Berrien county, in chancery; THOMAS O'HARA, Judge.

Bill in equity by James Clark against John Woodruff, Rufus W. Landon Harriet Wickham, and others, to redeem from an alleged mortgage. Judgment for plaintiff. Defendants appeal. Modified.

Edward Bacon, for appellants.

Theo. G. Beaver, (O. W. Coolidge, of counsel,) for appellee.

MORSE C.J.

James Clark, the complainant in this case, in January, 1871, was the owner of certain real property in the city of Niles. He had mortgaged this property to one Thomas G. Wickham and others for large amounts, which he was unable to pay. Some of the mortgages were in process of foreclosure, and he was liable to lose all the property. He finally made an arrangement with Wickham by which the latter was to assume and pay all this mortgage indebtedness, and give Clark a chance to redeem the premises. To this end Clark and his wife, on the 28th day of January, 1871, executed a warranty deed of the property to Thomas G. Wickham, and at the same time Clark and Wickham executed a land contract, by which Wickham agreed to sell the land to Clark. The amount of Clark's indebtedness at that time was figured to be $10,225, and this sum was used as the consideration for both the deed and the land contract. The agreement, after reciting that Wickham agrees to sell to Clark for the consideration of $10,225, and, describing the premises, concludes as follows: "And the said party of the second part agrees to purchase the above-described premises, and to pay therefor the sum of ten thousand two hundred and twenty-five ($10,225) dollars in manner following, that is to say, in three equal annual installments from the date hereof, with interest, to be computed from the date of these presents, at and after the rate of seven per centum per annum on the whole sum that shall be from time to time unpaid, and to be paid annually both principal and interest to be paid in the city of Niles. And the said party of the first part, on receiving such payment at the time and in the manner above mentioned, shall, at his own proper cost and expense, execute and deliver to the said party of the second part, or to his assigns, a good and sufficient deed or deeds, and thereby convey to the said party of the second part, his heirs and assigns, a good and unincumbered title in fee-simple to the above-described premises, with their appurtenances; and it is mutually agreed between such parties if said party of the second part shall fail to perform this contract, or any part of the same, said party of the first part shall immediately after such failure have the right to declare the same void, and retain whatever may have been paid on such contract; and the time of payment is of the essence of this contract. And it is agreed that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties. In witness whereof the said parties have hereunto set their hands and seals the day and year first above written. It is understood and agreed that the party of the first part is to have possession until the full amount of the purchase money is paid." Wickham then took possession of the property, and received most of the rents and profits thereafter. Clark received the rents from the bowling alley on the premises up to the 22d of March, 1871, and for the use of the hall up to August 1, 1871. On or about the 28th day of January, 1872, Wickham sold a portion of the land to one John Aul for the express consideration of $3,500. Wickham died in July, 1873, leaving a last will and testament, in which he appointed his wife, Harriet Wickham, and John Woodruff and Rufus W. Landon his executors. He devised his property in trust to said executors; one-third of the net income of his property to be paid his widow annually in lieu of her dower in his real estate and her distributive share in his personal property; the remaining two-thirds of the net income to be paid to the guardian of his children, for their maintenance and education and support. The property was bequeathed in equal shares to his children, to be paid to them as they respectively became of age, unless a majority of the executors saw fit to postpone such payment for a period not exceeding two years. The executors were authorized, if a majority of them deemed best to do so, to sell and convey any part of the real estate, to the end that the proceeds of such sale or sales might be reinvested.

April 30, 1874, complainant filed the original bill in this case making the executors and John Aul and his wife, Eva Aul defendants. The children of Wickham were not made parties. This bill set out the various circumstances and transactions (not necessary to be mentioned here) which led up to the arrangement between Clark and Wickham, which was perfected by the execution of the deed and land contract of January 28, 1871. The bill alleges that the deed and contract taken together, were in law a mortgage that the purchase price of the land sold to Aul should be applied as a payment upon said mortgage, and deducted, as of the date of said sale, from the sum of $10,225 mentioned as the consideration of said deed and contract, which payment complainant believes was $4,500; that before Wickham's death complainant made arrangements with one Reading to procure sufficient money to pay up the whole of the balance due on said contract to Wickham; that he went to Wickham, and so informed him, but that Wickham, although he had previously agreed to do so, refused to take the money, because it was not all due, saying to Clark, in substance, that he knew he had agreed to take the money at any time, whether it was due or not; and further saying, "You can't compel me to take it until it is all due." The bill further alleges that complainant has lately received offers for the purchase of a part of the property, and that he can sell the same for $12,000, if the cloud be removed from the title; that on the 8th day of April, 1874, complainant served upon the executors a request in writing that they render an account to him of the rents and profits of the several premises so deeded to Wickham, and in their possession, and with such request made an offer to pay what might be found to be due upon said land contract after deducting such rents and profits, and requested an answer, but received none. The bill prays that the deed and contract may be declared a mortgage, and that an account may be taken of the rent and profits; that the amount due to Wickham's estate upon said contract, after deducting such rent and profits, may be ascertained and decreed; that a fair valuation be taken of the premises deeded to Aul, and, if Aul shall be found to be a purchaser in good faith, the deed shall be affirmed to him; if not, that such deed be set aside or canceled at the election of complainant, and the defendants be decreed to account to him for a fair rental value of the premises, or the complainant be paid a reasonable price therefor, as he shall elect; and that the complainant be permitted to redeem the whole...