House v. Dexter

• Decision Date: 11 July 1861
• Citation: 9 Mich. 246
• Court: Michigan Supreme Court
• Parties: Levi House, administrator, etc., v. Samuel W. Dexter and others

9 Mich. 246

Levi House, administrator, etc., v. Samuel W. Dexter and others

Supreme Court of Michigan

July 11, 1861

Heard April 19, 1861

Appeal in chancery from Washtenaw circuit.

Complainant as administrator of Richard Shear, filed his bill in chancery to compel the specific performance, by defendant Dexter, of a contract by which he agreed to convey to one Waldo certain lands in said county, which contract had been assigned to Shear in his life time. The heirs of Shear were not made parties, and complainant by his bill claimed to be entitled as administrator, to the contract, and to the premises under it.

The court below dismissed the bill, and complainant appealed.

Decree of the court affirmed, with costs.

L Bishop, for complainant, referred for authority for the administrator filing the bill, to Comp. L., § 3038. If however, the heirs should be deemed necessary parties, he offered now to amend by making them such, which, he argued, might be done by consent of the court: Story Eq. Pl., § 236, and notes; § 541, and notes; § 885; 2 Barb. Ch. Pr., 60, note i; 3 Atk. 370; 1 Barb. Ch., 206, 209, 215, 217. The amendment as to parties may even be allowed after appeal: 1 Barb. Ch. Pr., 217, 398.

H. J. Beakes and A. D. Crane, for defendants.

OPINION

Manning J.:

The objection that the heirs of Shear are not made parties, or that the bill should have been filed by them, is well taken. The bill is for the specific performance of a contract for the sale of lands by Dexter to one Waldo, who assigned the contract to Shear; and is filed by complainant as administrator of Shear.

At law, a contract for the purchase of land gives the vendee no interest in the land, but the rule is otherwise in equity, which considers the vendor as to the land a trustee for the purchaser, and the vendee as to the money a trustee for the seller. The land in equity belongs to the vendee, and may be sold, devised or incumbered by him; and on his death it descends to his heirs, who take it subject to the rights of the vendor under the contract: Wing v. McDowell, Wal. Ch., 175, and cases there cited. The bill, therefore, should have been filed by the heirs of Shear, unless there is some statute authorizing it to be filed by the administrator.

But it is said the right of the administrator to file such a bill is given by the last section of chapter 100 of the Compiled Laws (Vol. 2, p. 909, § 3038). The title of the chapter is, "Of the specific performance by executors and administrators of the contracts of deceased persons for the conveyance of real estate." The performance here mentioned is a performance by executors and administrators, and not a performance by the vendor. And the performance provided for in the body of the statute is a performance by the executor or administrator of the vendor, when the proceeding is in the probate court, and by the heir, devisee, executor or administrator when it is in chancery.

The first section of the chapter provides that "When any person who is bound by a contract in writing to convey any real estate shall die before making the conveyance, the probate court may make a decree authorizing and directing the executor or administrator to convey such real estate to the person entitled thereto, in all cases where such deceased person, if living, might be compelled to execute such conveyance."

The second, third, fourth, fifth and sixth sections relate exclusively to proceedings in the probate court in the case provided for by the first section.

The seventh section provides that "Whenever any person who is bound by a contract in writing to convey any real estate shall die before making the conveyance the person entitled thereto may have a bill in the court of chancery, to enforce a specific performance of the contract by his heirs, devisees, or the executor or administrator of the deceased party who made such contract."

The eighth and ninth sections relate to the proceedings provided for by the preceding section.

The tenth, eleventh and twelfth sections, which apply to both courts, declare the effect of the conveyance, and provide for the recording and enforcement of the decree.

Then comes the thirteenth, or...