Haight v. Salter

• Decision Date: 16 September 1932
• Docket Number: No. 73.,73.
• Citation: Haight v. Salter, 260 Mich. 6, 244 N.W. 209 (Mich. 1932)
• Parties: HAIGHT v. SALTER et al.
• Court: Michigan Supreme Court

260 Mich. 6

244 N.W. 209

HAIGHT

v.SALTER et al.

No. 73.

Supreme Court of Michigan.

Sept. 16, 1932.

Appeal from Circuit Court, Wayne County; G. Arthur Rathbun, Judge.

Suit by John W. Haight against Frank S. Salter and another. Judgment for the defendants, and the plaintiff appeals.

Reversed, and cause remanded for entry of judgment in plaintiff's favor.

Argued before the Entire Bench.

Augustus C. Troden, of Detroit, for appellant.

Bulkley, Ledyard, Dickinson & Wright, of Detroit (Edgar C. Howbert and Robert W. Conder, both of Detroit, on the brief), for appellees.

FEAD, J.

Plaintiff was vendee, by assignment, of land contract dated January 30, 1924, executed by defendants as vendors, and in which they represented that they owned the land. In fact, they were contract purchasers from Coe, who had mortgaged the premises to Smitherman.

The contract required the vendors to execute and deliver to the vendee a warranty deed, free from incumbrances except those arising from vendee's acts or default, on receiving payment in full and surrender of the contract.

The contract payments of $7 per month were made with unusual, although not strict, regularity, only one payment not being made on the precise due date in the last two years and over of the life of the contract. It was fully paid November 6, 1930, to defendants' agent, and with it written demand for deed was made.

Plaintiff claims he telephoned defendants' office in December and was promised a deed in a short time. February 25, 1931, he called at defendants' office, tendered the contract, and demanded a deed. The employee in charge said no application for a deed had reached the files, a new one was executed, and plaintiff granted defendants ten days for delivery. By registered letter of the same date he made formal demand for deed within ten days. On March 11th, he called again and talked with defendant Salter, who wanted further time for delivery, which plaintiff refused to grant, but tendered his contract and demanded return of his money. On the same day, plaintiff wrote defendants, declaring the contract breached and making demand for his money within forty-eight hours.

March 20, 1931, he commenced this suit to recover the purchase price he had paid. Defendants had judgment on trial before the court.

Defendants' excuse for failure to deliver the deed revolves around the facts that Coe had title; that Smitherman, the mortgagee, had died in 1929 and his estate was in probate; and that Smitherman's sole heir had lately died and probate of his estate had just begun. Defendants said they were willing to pay the $100 necessary to release the premises from the mortgage, but because of the deaths there was no one to execute the release. May 21, 1931, after suit was begun, Coe conveyed to defendants and they prepared and tendered a deed to plaintiff, which was refused. September 19th, the mortgage lien was released by the executor of the Smitherman estate.

Defendants rely on Cossett v. O'Riley, 160 Mich. 101, 125 N. W. 39, which involved the right of a vendor who had tendered a deed to correct defects in the title as soon as they were pointed out by vendee. Obviously, the case is not in point, as we are here confronted by the refusal or inability of vendors to execute a deed at the time provided in the contract.

‘If the conveyance is to be made...