Jordan v. Morony, 49.

• Decision Date: 02 June 1930
• Docket Number: No. 49.,49.
• Citation: 231 N.W. 80,250 Mich. 593
• Parties: JORDAN et al. v. MORONY et al.
• Court: Michigan Supreme Court

250 Mich. 593

231 N.W. 80

JORDAN et al.

v.MORONY et al.

No. 49.

Supreme Court of Michigan.

June 2, 1930.

Appeal from Circuit Court, Shiawassee County, in Chancery; Joseph H. Collins, Judge.

Suit by William F. Jordan and others against Louis R. Morony, as administrator of the estate of Dennis Morony, deceased, Simeon De Barr and others. Decree for plaintiffs, and defendants, except the defendant first named, appeal.

Modified and affirmed.

Argued before the Entire Bench.Selden S. Miner and Leon F. Miner, both of Owosso (Milton G. Schancupp, of Owosso, of counsel), for appellants De Barr.

Joseph H. Dunnebacke, of Lansing (Byron P. Hicks, of Owosso, of counsel), for appellees.

NORTH, J.

The plaintiffs in this case are the children of Patrick Jordan who died in 1919. At his death they became the owners of 190 acres of farm lands in Shiawassee county. This property was composed of three parcels consisting of 105 acres, 45 acres, and 40 acres. On January 21, 1924, the executor of the Jordan estate, whose authority so to do is not questioned, entered into a contract to sell these lands to Dennis Morony for $10,000 payable March 1, 1925. Morony on January 31, 1925, sold the two parcels containing 150 acres to the defendant Simeon De Barr; the down payment being $5,100. The purchaser went into possession March 1, 1925. Later Morony sold on a land contract the remaining 40 acres to Charles De Barr, son of Simeon De Barr. The purchaser went into possession of this parcel August 31, 1926. These vendees have continued in possession of the respective parcels since the dates above noted. The bill of complaint herein was filed May 1, 1928; and to that date Morony had paid only $800 on the original contract. He died prior to the filing of this bill. The suit was brought against Louis R. Morony as the administrator of the estate of Dennis Morony and the other defendants to enforce the payment of the contract price by said administrator and in default thereof to have the contract foreclosed and possession restored to plaintiffs. The relief sought is not contested by the administrator of the Dennis Morony estate; and the only defense urged by the other defendants is that plaintiffs could not furnish a merchantable title as provided in the contract in which Morony was the vendee. On this ground the defendants De Barr assert that plaintiffs should be denied relief. After having heard the case in open court, the circuit judge entered a decree granting the relief sought. The defendants De Barr have appealed.

The question presented was covered by the finding filed by the circuit judge as follows: ‘The court is of the opinion, however, that such a defense cannot be made because those who make it are in possession of these premises and have been for several years since the date of the Morony contract. If the title was defective and not perfected it was the duty of Morony and those holding under him to surrender possession of the premises and bring suit for any damage sustained because of breach of contract against those liable for the same. The contract purchasers here cannot forever withhold from the plaintiffs their land and enjoy the possession and profits thereof and pay nothing on their contract because they claim the plaintiffs cannot furnish to them a merchantable title.’

The foregoing conclusion of the circuit judge is abundantly supported by the authorities and is controlling in the instant case. 39 Cyc. 1614; 27 R. C. L. 543; 27 R. C. L. 544; 27 R. C. L. 546; McIndoe v. Morman, 26 Wis. 588, 7 Am. Rep. 96;Sheehan v. McKinstry, 105 Or. 473, 210 P. 167, 34 A. L. R. 1315;Lasley v. Pendleton, 109 Kan. 466, 473, 200 P. 274;Curran v. Banks, 123 Mich. 594, 82 N. W. 247;Ferris v. Poucher, 152...