Covell v. Cole

• Decision Date: 02 November 1867
• Court: Michigan Supreme Court
• Parties: Elliott F. Covell v. Julia Cole et al

16 Mich. 223

Elliott F. Covell v. Julia Cole et al

Supreme Court of Michigan

November 2, 1867

Heard October 26, 1867

Appeal in chancery from Kent circuit

The bill in this cause was filed to enforce the specific performance of a contract for the sale of certain lands.

A demurrer to the bill was filed by the two principal defendants, and which was overruled. The bill was taken as confessed as to the remainder of defendants.

The court below rendered a decree that defendant convey to complainant an undivided two-thirds of the premises contracted for, and that they procure for him a perfect title for the remaining one-third.

The facts are stated in the opinion.

Costs of the court allowed to complainant.

T Romeyn, for appellants:

1. The agreement was to sell an entire property for one consideration. The parties are unable to make a title to the whole, and they can make no title to any distinct and divisible portion.

Equity will not compel a purchaser to take, nor a vendor to convey undivided interests in a case like this free from all fraud 2 Bro. C. C., 118; 3 Sim. 29.

If the purchaser can not be compelled to take, neither can the vendor be compelled to convey such undivided interest, when he appears to have made the contract in ignorance of the extent of his title.

2. Both the parties, at the time of the agreement, knew that the title was imperfect, and both were aware that the title was to be made under the will of a third person.

When that will was procured, it was first discovered that there was no title to one-third, and this was communicated to the defendants. No fraud is suggested or inferable. Now, to compel the parties to convey two-thirds, and get payment for but that proportion, would defeat the probable object which they had in view in selling, and would involve great hardship.

The granting of this relief depends upon a temperate consideration of the facts in each case: 10 Ves. 319.

3. According to the terms of the contract, the defendants were not to convey until the title was perfected. This has not yet been done, and, therefore, they are not yet in default.

4. This was a case of mistake. The interest to be conveyed did not exist. The defendants had no title to one-third of the premises, and the complainant could not have been compelled to accept the two-thirds, neither can he compel the conveyance to him of such partial interest.

There is an evident distinction between this class of cases and those where a party, knowing the limitations of his title, chooses to contract for the conveyance of a greater estate: 10 Ves. 316; Story's Eq., §§ 141-143; 1 Scho. and Lef., 13; 8 Paige 312.

It is unreasonable to suppose that the defendants would have made this agreement if they had understood the true state of the title, and the court will not decree specific performance, unless it is clearly satisfied that the agreement embodies the real understanding of the parties: 15 Mich. 388

5. In any view of this case, the present decree is inequitable and oppressive.

The defendants are to receive payment for two-thirds, and to surrender the possession of the other third, and the complainant is to be allowed the rent of the whole, while he pays for a part.

George Gray, for appellee:

A purchaser who has contracted for the whole estate, without notice that the vendor has not or can not get the whole, is entitled to such interest or quantity as the vendor can convey, with compensation or reduction for the balance: 2 White and Tudor's Eq. Cases, part 2d, pp. 24, 35; 16 Vesey, jr. (Sumner's ed.), 1, 390; 10 Id. 292; 17 Id. 394; 9 Johns. 450; 3 Sanford's Ch., 613; 1 Hare (Eng. Ch.), 26; 3 Beavan 123; Adams's Eq., marginal page 91; 2 Pars. on Cont., 540, 558; Story's Eq. Jur., § 779; 8 Blackford, 146; 34 Ala. 633; 6 Wis. 127.

Complainant, having made a tender of the money to be paid down, and kept such tender good, is entitled to rents and profits from the time he should have received possession, and should pay interest from same time on portion not tendered: 2 White and Tudor's Eq. Cases, 16, 17; Adams's Eq., margin (68).

Campbell, J. Christiancy and Cooley, JJ. concurred. Martin, Ch. J. did not sit.

OPINION

Campbell J.:

Complainant filed his bill for specific performance of a contract made by the defendants Cole and Moseley, to convey certain property at Grand Rapids to himself and one Rogers, who has assigned his interest to complainant. The bill was taken as confessed.

The case made is in substance that Cole and Moseley agreed to make title to the premises as soon as possible, and within a specified time deliver up possession. It was then supposed the only thing required to make the title perfect was the probate of a will, under which defendants had received an executors' deed. It afterwards turned out that only two-thirds of the title vested by that deed, the remainder being outstanding, and no contract or other interest existing in the defendants for that third. Complainant and Rogers desired possession on the appointed day, but were put off on some pretext, and Moseley subsequently conveyed his interest to the defendant Young, who is charged with notice. Complainant desires a performance as to the two-thirds, if the remainder is...