Kefgen v. Coates
| Decision Date | 01 December 1961 |
| Docket Number | O,No. 43,43 |
| Citation | 111 N.W.2d 813,365 Mich. 56 |
| Parties | T. Vance KEFGEN and Jessie Kefgen, his wife, Plaintiffs and Appellees, v. Albert E. COATES, Jr. and Lucille P. Coates, his wife, Defendants and Appellants. ctober Term. |
| Court | Michigan Supreme Court |
Robbins & Wechsler, Detroit, Arthur L. Robbins and I. R. Starr, Detroit, of counsel, for appellants.
Ingle & Ponder, by Allen C. Ingle, Farmington, Fred Romanoff, Detroit, of counsel, for appellees.
Before the Entire Bench.
This is a suit in equity to enforce a forfeiture of an executory contract for the sale of land and personal property. The bill of complaint avers that on December 22, 1956, plaintiffs being in possession of a motel in Farmington Township, Oakland County, entered into an agreement in writing for the sale thereof to Frederick W. Kingston and wife as purchasers. Thereafter said purchasers executed a contract, dated October 1, 1957, to sell the property to defendants in the instant suit, Albert E. Coates and wife. Pursuant to the terms of such contract the vendees went into possession.
For reasons not material in the present controversy Frederick W. Kingston and wife assigned their sellers' interest in the contract with defendants to the plaintiffs. This transaction occurred on February 2, 1959. Shortly thereafter plaintiffs served upon defendants notice of intention to forfeit the contract for failure to make payments thereunder. This was followed by notice of forfeiture and the institution of an action of ejectment against defendants in the Oakland circuit court. This case was dismissed in June following.
Under date of July 7, 1959, plaintiffs served defendants with a second notice of intention to forfeit the contract, and thereafter gave notice of such forfeiture. The present suit in equity was then instituted, plaintiffs asking for general equitable relief and specifically for an accounting, with sale of the property described in the contract between defendants and the Kingstons which had been assigned by the latter to plaintiffs, and a deficiency decree. Plaintiffs also sought the appointment of a receiver. Defendants filed answer to the bill of complaint denying the right of plaintiffs to the relief sought, and also filed a motion to dismiss the suit on the theory that plaintiffs, having declared a forfeiture of the contract, were not entitled to seek relief in equity. This motion was denied by the trial court, and plaintiffs' request for a receiver was also denied.
The contract between the Kingstons and defendants contained the following provision:
It thus appears that the contract involved in the instant suit expressly provided for forfeiture at the election of the seller if defendants failed to perform in accordance with their undertaking. It is not disputed that at the time the notice of forfeiture was served defendants were in default. It was the claim of the plaintiffs that on July 1, 1959, three weeks prior to the filing of the bill of complaint, the amount required to bring the contract up to date was $11,700.78. The trial judge before whom the matter was heard apparently considered the proceeding before him as one to enforce the forfeiture which had been declared by plaintiffs in accordance with the terms of the contract.
A decree was entered, presumably in accordance with plaintiffs' prayer for general equitable relief, reciting the absence of a contest on the part of the defendants and adjudging that the contract had been duly forfeited. In the exercise of equitable jurisdiction the court further decreed that defendants should be given four months after the entering of the decree within which to pay the amount due under the contract as of December 1, 1959, and that in default of said payment plaintiffs, without further notice to defendants, might take steps to obtain possession of the real and personal property described in said contract. Proceedings were accordingly stayed during the four months' period specified. It is conceded that the right given by the decree of the trial court to pay the amount due under the contract was not exercised by the defendants. Defendants have appealed from the decree, stating in their brief that plaintiffs repossessed the motel property, including the personalty, under chancery court process, such action being taken, as it appears, after the expiration of the four months' period allowed for purposes of redemption.
On behalf of the appellants it is insisted that the action of the plaintiffs in declaring a forfeiture of the contract which is the subject matter of the litigation elected their remedy and could not invoke the aid of equity thereafter. They rely on the decision of this Court in Chicago Boulevard Land Co. v. Apartment Garages, 245 Mich. 448, 222 N.W. 697. There the plaintiff after service of notice of forfeiture of a land contract sought to foreclose such contract in equity, seeking in such proceeding the right to recover any deficiency that might exist following sale. The Court pointed out the remedies of a vendor under a land contract in the event of default on the part of the vendee. In this connection it was said:
In the case cited the agreement was for the sale of real property only. In the case at bar not only the land on which the motel was located was agreed to be sold but also, in addition to the real estate, the furniture and equipment used in the operation of the motel. The contract, after describing the land to be conveyed, contained the following specific provision:
'together with all tenements, hereditaments, improvements and...
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