Fitzhugh v. Maxwell
| Decision Date | 06 June 1876 |
| Court | Michigan Supreme Court |
| Parties | William D. Fitzhugh v. Andrew C. Maxwell |
Heard April 14, 1876
Appeal in Chancery from Bay Circuit.
Decree reversed, and a new decree entered and case remanded.
McDonell & Mann, for complainant.
A. C Maxwell, in person, for defendant.
In March, 1868, Fitzhugh sold by executory contract to Maxwell twenty-nine acres of land in Bay County for two thousand one hundred and ninety-two dollars and twenty-five cents, payable in four equal annual installments, with seven per cent interest. One-fourth of this was paid down. Whether any further payments were made is disputed. Maxwell was entitled to and received possession.
On the 7th of May, 1875, Fitzhugh filed a bill insisting on a forfeiture of the contract, but with a prayer for general relief. A decree was granted of forfeiture unless the amount set forth in the decree was paid by May 7, 1876. That amount gave no credits beyond the first payment.
A court of equity has no jurisdiction to enforce forfeitures. If a party desires such relief he must seek it at law, or by entry for the breach of condition. In the present case the contract contains no clause of forfeiture whatever, and as time is not of the essence of such a contract, and has not been made so by any subsequent action of either party, the utmost that could be claimed would be a rescission, if the circumstances justified it. But in this case the delay has been allowed without any peremptory notice or demand to change the ordinary condition of affairs.
Assuming that a bill framed with such a prayer as the present one can be allowed to stand as a bill for specific performance, the decree is erroneous in not requiring the payment of money absolutely and a sale to enforce the vendor's lien. The only thing due to the vendor is his money, and this is due as an ordinary money debt, which it is the object of the suit to collect. It is so purely a debt that a writ of ne exeat lay to secure it, which is never granted in any case except as equitable bail for a sum due and ascertainable as a money demand. The nature of the suit and the character of the rights of both parties is very well set forth in Boehm v. Wood, 1 T. & R., 332, where the writ was maintained and explained by Lord Eldon.
While at law the title remains in the vendor, yet in equity the contract conveys it to the vendee, and the only principle which allows the vendor to sue for his money, and at the same time seek security against the land, is the one which recognizes the analogy to a vendor's lien in cases where the legal title has been conveyed. The title of the vendee whether legal or equitable, can only be divested by a sale, and under the English practice, until judicial sales were more recently provided for by other means, the defendant's conveyance was necessary to bar his rights.--Boehm v. Wood, supra. There is no recognition anywhere of the doctrine that there can be a strict foreclosure of such a lien, whether the land has been conveyed or not. And the only controversy has been, whether cases did not exist where, by reason of the defendant's bankruptcy, or by reason of the peculiar nature of the property and its uses, the lien was lost entirely. There have been several cases where it became necessary to consider whether a sale for railway purposes left such a lien in existence. It was, however, maintained; but the court has uniformly refused to regard the vendor as entitled to the rights of...
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Lutz v. Dutmer
...foreclosure of a vendor's lien ‘is a direct reversal of all rules, and in violation of every equitable principle and analogy.’ Fitzhugh v. Maxwell, 34 Mich. 138. The only principle which allows the vendor to sue for his money and at the same time seek security against the land is the one wh......
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People's Sav. Bank v. Geistert
...A bill by a vendor is always to get his money, and the lien on the land is only a means of collecting it in whole or in part.’ Fitzhugh v. Maxwell, 34 Mich. 138. ‘It is in the nature of a bill of foreclosure, and when the rights under the contract are determined, the court will have full po......
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Keyworth v. Wiechers
...to enforce forfeitures. If a party desires such relief he must seek it as law, or by entry for the breach of condition.’ Fitzhugh v. Maxwell, 34 Mich. 138. ‘It has been held in this state that time is not generally so far of the essence of a contract that a failure to perform within a perio......