Gordon Grossman Bldg. Co. v. Elliott

• Decision Date: 03 November 1969
• Docket Number: No. 16,16
• Citation: 382 Mich. 596,171 N.W.2d 441
• Parties: GORDON GROSSMAN BUILDING COMPANY, a Michigan Corporation, Plaintiff-Appellant, v. Jeannine ELLIOTT, Defendant-Appellee, John F. Elliott, her husband, Defendant, Jointly and Severally.
• Court: Michigan Supreme Court

Page 441

171 N.W.2d 441

382 Mich. 596

GORDON GROSSMAN BUILDING COMPANY, a Michigan Corporation Plaintiff-Appellant, v. Jeannine ELLIOTT, Defendant-Appellee John F. Elliott, her husband, Defendant, Jointly and Severally.

No. 16.

Supreme Court of Michigan.

Nov. 3, 1969.

Hertzberg, Jacob, Weingarten & Kennedy, by Peter A. Nathan, Detroit, for plaintiff-appellant.

McIntosh, Simpson, Oppliger & Mugan, by Gerald E. Mugan, Port Huron, for defendant-appellee.

Before the Entire Bench, except BLACK, J.

T. M. KAVANAGH, Justice.

On May 26, 1959, plaintiff-appellant Gordon Grossman Building Company as vendor entered into a land contract with defendants Jeannine Elliott and her husband, John Elliott, as vendees covering a house and lot in the township of Burtchville, St. Clair county, Michigan, for the sale price of $11,750. Defendants defaulted in payments and plaintiff instituted foreclosure of the land contract in circuit court. A judgment of foreclosure was entered on November 10, 1966, finding a balance of $8,591.63 due on the land contract plus costs to be taxed and ordering the property to be sold by a circuit court commissioner. The property was sold to plaintiff on December 30, 1966, and the sale was confirmed by the trial court on February 3, 1967. No appeal was taken from this order. The statutory period for redemption expired on March 30, 1967.

On March 16, 1967, Mrs. Elliott's attorneys wrote to plaintiff's attorneys stating:

'Confirming our telephone conversation of March 16, 1967 we are forwarding to you a warranty deed to be executed by the proper representative of the Grossman Company. As you know, the Elliotts have found a purchaser for the property and the Michigan National Bank has approved the loan.

'However, we will need the deed from Grossman to Elliott in order to consummate this transaction. We have received a title commitment from the local title company indicating that there is a balance due on a mortgage at Citizens Federal Savings & Loan Association of Port Huron, wherein the Grossman Company is the mortgagor.

'With a copy of this letter I am requesting Mr. George LeVine (sic) of the Michigan National Bank to confirm, by letter, that they have approved a loan for the purchasers, Mr. and Mrs. Robert A. Ritz, and that they will forward to you for your client the balance owing as a result of the foreclosure sale. Pursuant to your letter of March 9, 1967 the total amount due for redemption as of March 10, 1967 is $9,299.91 with $1.51 in interest due per day after that date.

'Please forward the executed deed directly to Mr. LeVine (sic) at the bank with directions that he be authorized to pay the balance directly to Citizens to discharge the mortgage and to remit the balance to you for your client. Mr. LeVine (sic) will not deliver the deed until such time as he makes disbursement to you and Citizens.

'I would appreciate it if you would expedite this matter, as you know, the redemption is drawing near. Please advise if there are any problems concerning this matter.'

On March 21, 1967, the mortgage department of the Michigan National Bank wrote a letter to plaintiff's attorneys stating.

'In response to your letter from McIntosh, Simpson, Oppliger and Mugan of March 16th, 1967, this is to confirm that the Michigan National Bank has approved the loan to Mr. and Mrs. Robert A. Ritz to purchase the John and Jeannine Elliott property located at 3293 Blue Water Drive, Port Huron, Michigan.'

On March 23, 1967, Mr. Jacob, one of the attorneys for plaintiff Grossman Building Company advised defendant Jeannine Elliott's attorneys as follows: 'Our clients are not going to send you the deed. Mr. Nathan never said they would. As far as we are concerned, that's it.'

On April 7, 1967, after the period of redemption had expired, Mrs. Elliott filed a motion in circuit court seeking an order requiring plaintiff to execute a warranty deed and to comply with all of the terms of the contract. She sought to require plaintiff to deliver to her a complete abstract of title and tax history certified to date of conveyance.

Plaintiff answered, saying it was not required to place the deed in escrow after expiration of the redemption period.

On April 17, 1967, the trial court entered an order providing in part:

'IT IS HEREBY ORDERED that the plaintiff * * * execute a valid warranty deed in fulfillment of the terms of a certain land contract dated May 26, 1959, and that said plaintiff comply with all terms of said contract, including the provisions contained in paragraph No. 7 in said contract.

'IT IS FURTHER ORDERED that said plaintiff execute said deed and comply with all provisions forthwith.'

Plaintiff appealed to the Court of Appeals. The order of the trial court was affirmed in a unanimous opinion. 11 Mich.App. 620, 162 N.W.2d 107. Leave to appeal to this Court was granted plaintiff on September 3, 1968. 381 Mich. 773.

The two issues in this Court are:

(1) Was the trial court's order requiring the vendor to execute a warranty deed improper?

(2) Were the foreclosure proceedings void because of an improper description in the circuit court commissioner's notice of sale, deed and report of sale?

Disposing of the latter issue, the record discloses the issue was never raised or passed upon by the trial court or the Court of Appeals. The failure to raise a question in the lower court precludes, as a general rule, the Supreme Court considering it on appeal. See Young v. Morrall (1960), 359 Mich. 180, 187, 101 N.W.2d 358, and cases therein cited. See, also, Krautner v. Kinsella (1963), 369 Mich. 98, 100, 119 N.W.2d 600; Therrian v. General Laboratories, Inc. (1964), 372 Mich. 487, 490, 127 N.W.2d 319; Magreta v. Ambassador Steel Co. (1968), 380 Mich. 513, 519, 158 N.W.2d 473.

Turning to the only issue really before this Court, we recognize the statute ¹ pertaining to redemption from foreclosure, which reads in part:

'The vendee of a land contract, his heirs, executors, administrators, or any person lawfully claiming from or under him or them may redeem the entire premises sold within 3 months from the time of the sale By paying to the purchaser, his executors, administrators, or assigns or to the register of deeds in whose office the deed of sale is deposited as provided in the court rules, for the benefit of the purchaser, the sum which was bid with interest from the time of the sale at the rate per cent borne by the land contract. In case the sum is paid to the register of deeds the sum of $5.00 shall be paid to him as a fee for the care and custody of the redemption money. After these sums have been paid the deed of sale is void and of no effect, but in case any distinct lot or parcel separately sold is redeemed, leaving a portion of the premises unredeemed, then the deed of sale is inoperative merely as to the portion or portions of the premises which are redeemed, and to the portions not redeemed it remains valid and of full effect.' (Emphasis added.)

The period of redemption is specifically set at 3 months and the procedure to properly effect redemption within this period is clearly spelled out. Absent some unusual circumstances or additional considerations not within the ambit of the statute, this Court must follow the clear and plain meaning of the statute.

We accept as a general rule that the right to redeem under present statutes is a legal right and can neither be enlarged nor abridged by the courts. See Detroit Trust Co. v. George (1933), 262 Mich. 362, 247 N.W. 697; Drysdale v. Christy Land Co. (1929), 248 Mich. 184, 226 N.W. 882.

In Wood v. Button (1919), 205 Mich. 692, 172 N.W. 422, this Court, holding that a mortgagor redeeming within the statutory period was not required to reimburse the purchaser at the foreclosure sale for taxes paid, stated (p. 703, 172 N.W., at p. 425):

'In my opinion, the case presented is not one to be determined upon some notion of general equities. The parties have a right to stand upon the law. Carlisle v. Dunlap, 203 Mich. 602, 169 N.W. 936. The right to redeem from a foreclosure at law is a legal right, is created by the statute, and can neither be enlarged nor abridged by courts. A redemption is complete when one having the right to redeem pays in proper time, to a proper person * * *.' (Emphasis added.)

Any departure from this general rule must be addressed to the conscience of the court, which under prior statutes and prior practice was in the nature of a bill in equity. See McCreery v. Roff (1915), 189 Mich. 558, 155 N.W. 517. The usual ground urged as an exception to the general rule, justifying the intervention of the court of equity, is that of fraud. See Palmer v. Palmer (1916), 194 Mich. 79, 160 N.W. 404. The element of fraud, however, must be proven by clear and convincing proofs.

In Marble v. Butler (1930), 249 Mich. 276, 228 N.W. 677, the plaintiff, having paid over 90% Of the land contract obligation, attempted to redeem by securing a mortgage to pay the entire balance due and tendered the full sum to the purchaser, and upon the latter's refusal deposited the amount due with the clerk of the court. The Court in Marble noted, as further unusual circumstances, that one of the original land contract vendees refused to join in executing the mortgage and that defendant-purchaser refused to disclose the amount still due and refused to provide an abstract of the property. Reversing the lower court, which dismissed plaintiff's bill in equity--filed on the last day of redemption and praying that the court compel the land contract vendee to join in executing the mortgage--this Court in Marble stated (pp. 279, 280, 228 N.W., at p. 678):

'This court has frequently relieved a person from a harsh forfeiture where he is Ready and willing to make full payment, and where there are Very unusual circumstances which appeal to the conscience of the court, and where The party seeking to enforce the forfeiture will receive everything to which he would have been...