Day v. Cole
| Decision Date | 09 April 1885 |
| Citation | 22 N.W. 811,56 Mich. 294 |
| Court | Michigan Supreme Court |
| Parties | DAY v. COLE and others. |
Appeal from Ottawa.
J.C. Fitzgerald, for complainant.
O.L Jordan, for defendants and appellants.
This case comes before the court on demurrer to a supplemental bill of complaint. The circuit court overruled the demurrer and the parties demurring appealed. The original bill was filed September 12, 1881, against a large number of defendants, the leading purpose being to obtain payment of the purchase moneys on a certain contract for the sale and conveyance of lands, made between the Blendon Lumber Company as vendor, and the defendant Edward Cole, as vendee, and bearing date September 1, 1866. The case on its facts was exceedingly complicated. There were two collateral contracts assigned as security for the principal contract. The members of the lumber company, which was a partnership, were all dead, and there had been transfers of interests by personal representatives and heirs. On the hearing on the original bill, the court was satisfied that all parties in interest were not before the court, and had directed the case to stand over for the bringing in of other defendants. This was done by the supplemental bill, and several of the parties brought in demurred for want of equity.
1. One ground assigned for demurrer in the brief for defendant is that the bill prays for a forfeiture, which equity will not grant. Crane v. Dwyer, 9 Mich. 350; Wing v. Railey, 14 Mich. 83. But this is not the correct view to take of the bill. It is in the nature of a bill of foreclosure, and when the rights under the contract are determined, the court will have full power to provide for the protection of all equities, and to order a sale for the satisfaction of moneys due, if necessary. Fitzhugh v. Maxwell, 34 Mich. 138.
2. Another ground of objection to the bill is that it appears thereby that complainant is not owner of the title to all the lands contracted to be sold, but a part of them are owned by the defendant Jordan, who should have been joined as complainant. But if this objection is well grounded in fact, it is not good in law as a ground for general demurrer. If all the parties in interest are before the court it is sufficient; and they are before the court, either as complainants or defendants, if the allegations of the bill are true, as the demurrer admits them to be.
3. The claim upon the contract is said to have become, by the great lapse of time, a stale claim; but the remedy upon it does not appear, in view of the recitals in the bill of the dealings of the parties, to have become barred by the statute of limitations or any rule applied by analogy. Besides complainant,...
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...power to provide for the protection of all equities and to order a sale for the satisfaction of moneys due, if necessary. Day v. Cole, 56 Mich. 294, 22 N.W. 811;Field v. Ashley, 79 Mich. 231, 44 N.W. 602. ‘A bill filed strictly for specific performance usually asks a decree for the formance......
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