Jones v. Bowling
| Decision Date | 07 June 1898 |
| Citation | 75 N.W. 611,117 Mich. 288 |
| Court | Michigan Supreme Court |
| Parties | JONES ET AL. v. BOWLING ET AL. |
Appeal from circuit court, Wayne county, in chancery; Joseph W Donovan, Judge.
Foreclosure by Lewis H. and Ida Jones against Jennie T. and Stephen J Bowling. Decree for complainants, and defendants appeal. Affirmed.
E. H. Sellers (John D. Conely and Cassius Hollenbeck, of counsel), for appellants.
C. E Warner, for appellees.
January 3, 1898, complainants filed a bill for the foreclosure of a vendor's lien upon a land contract. February 18, 1898, a decree was entered in which it was found that $10,802 was due, and directing the defendants to pay the same on or before March 21, 1898. In case of nonpayment by that date sale might be made by a circuit court commissioner at any time thereafter. The decree also provided that Mrs. Bowling should be liable personally for any deficiency. It gave the possession of the premises to defendants for 30 days from the date of the decree. From then until May 1, 1898, they were allowed to occupy the premises upon paying $50 monthly in advance as rental, to be applied upon the amount found due and costs. If this rental was not paid, the decree provided for the appointment of a receiver to take possession of the property. From this decree, defendants appeal.
The land contract was in the usual form, except in one or two particulars. It contained these provisions: The record shows that, when the bill was filed, $10,000 of the principal sum was due upon the contract, and some interest and taxes. After the principal was due, defendants said, if given a little time, they thought they could sell the property and pay the debt. The bill was not at once filed, and some small payments were made after the principal came due. It is urged the receipt of these payments waived a forfeiture, and made the vendees tenants, entitled to notice before their tenancy could be terminated. All of the principal was due July 1, 1897. Mr Jones assured Mr. Bowling that he wanted the money due, but had no desire to be hard upon the defendants. Mr. Bowling thought he could sell the property, if given a little time, and said, if the payment could be delayed until the 1st of December, if the property was not sold, or some arrangement made, he would make no trouble, but would give a quitclaim deed. During this time he was to pay $50 a week until the interest was paid up, and he made two or three weekly payments. What was done was not intended by the parties as a new contract, but was intended simply as a delay in enforcing the contract, which would be in the interest of the defendants. We do not think they can now be heard to say, when they have failed to carry out the arrangement, that it changed the terms of the contract. After the making of the contract, Mr. Jones conveyed the property to his father. The deed was made subject to this contract. It is now said that, because plaintiff had alienated his title, he cannot maintain this...
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