Hayes v. Kent Real Estate Co., Docket No. 13411

• Decision Date: 06 December 1972
• Docket Number: Docket No. 13411,No. 3,3
• Citation: 44 Mich.App. 196,205 N.W.2d 52
• Parties: Kenneth T. HAYES, Executor of the Estate of Lula Wilkins Brotton, Deceased, Plaintiff-Appellee, v. KENT REAL ESTATE COMPANY et al., Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 52

205 N.W.2d 52

44 Mich.App. 196

Kenneth T. HAYES, Executor of the Estate of Lula Wilkins Brotton, Deceased, Plaintiff-Appellee, v. KENT REAL ESTATE COMPANY et al., Defendants-Appellants.

Docket No. 13411.

Court of Appeals of Michigan, Division No. 3.

Dec. 6, 1972.

Leave to Appeal Denied March 1, 1973.

Released for Publication March 20, 1973.

Jack E. Frost, Russell & Ward, J. Terry Moran, Grand Rapids, for defendants-appellants.

Kenneth T. Hayes, Hayes & Davis, Grand Rapids, for plaintiff-appellee.

Before R. B. BURNS, P.J., and HOLBROOK and DANHOF, JJ.

DANHOF, Judge.

This is a land contract dispute. On May 20, 1970 plaintiff, an attorney and executor of an estate which holds the vendor's interest in a land contract with defendantsvendees, served upon the defendants a form entitled 'Notice of Intention to Declare Land Contract Forfeited and Demand for Payment.' On June 1, 1970 plaintiff caused a document entitled 'Complaint and Affidavit to Recover Land on a Land Contract,' which only prayed for possession of the premises covered by the land contract, to be served upon the defendants. On June 23, 1970 plaintiff recovered a default judgment in the District Court for the 61st District. When the plaintiff learned that the judgment was not a money judgment he filed a motion in the District Court to set aside the default judgment. The District Court refused to set aside the judgment and the plaintiff appealed to the Circuit Court. The Circuit Court reversed the District Court and the defendants have appealed on leave granted. We reverse the judgment of the Circuit Court and affirm firm the judgment of the District Court.

It has long been settled that a valid notice of forfeiture terminates any right to bring an action on the contract. Taylor v. Parkview Memorial Associations, 317 Mich. 164, 26 N.W.2d 748 (1947), Windmill Point Land Co. v. Strickland, 264 Mich. 79, 249 N.W. 464 (1933). In Chicago Boulevard Land Co. v. Apartment Garages, 245 Mich. 448, 450, 222 N.W. 697 (1929), the Court tersely stated the rules saying:

'* * * The purpose and effect of a valid declaration of forfeiture are to end the contract and discharge vendor of the duty to convey and vendee of duty to pay. Consequently, after forfeiture, action at law will not lie for recovery of any part of the purchase price.'

The plaintiff contends that M.C.L.A. § 600.5637; M.S.A. § 27A.5637 allows him to obtain a money judgment even after notice of forfeiture. The relevant portion of the statute reads:

'The plaintiff may allege in the complaint that defendant is indebted to him for breach of the lease or land contract or by reason of wrongful possession of the premises for which possession is sought in the complaint. A money judgment may be rendered in such action against any defendant over whom the court has personal jurisdiction. A defendant against whom a claim is made may file a counterclaim against the plaintiff by way of setoff or recoupment. If the claim for money or counterclaim exceeds the jurisdiction of the court, the court shall hear the claim for possession but shall dismiss the claim for money and counterclaim without prejudice to subsequent action thereon.' (Emphasis added.)

We believe it would be a mistake to construe the statute as allowing a money judgment in this proceeding....