Labadie v. Boehle, 64.

• Decision Date: 09 March 1939
• Docket Number: No. 64.,64.
• Citation: 288 Mich. 223,284 N.W. 707
• Parties: LABADIE v. BOEHLE et ux.
• Court: Michigan Supreme Court

288 Mich. 223

284 N.W. 707

LABADIE

v.BOEHLE et ux.

No. 64.

Supreme Court of Michigan.

March 9, 1939.

Suit by Sarai W. A. Labadie against Henry Boehle and wife to rescind the purchase of certain real estate, to discharge real estate mortgage, to restrain foreclosure of mortgage, and to establish lien on the real estate for money paid down thereon. From a decree for plaintiff, defendants appeal.

Affirmed.

Appeal from Circuit Court, Wayne County, in Chancery; Guy A. Miller, judge.

Argued before the Entire Bench.

Henry Messimer of Detroit (Elmer H. Groefsema, of Detroit, of counsel), for appellants.

Harold H. Emmons, of Detroit (Harold H. Emmons, Jr., of Detroit, of counsel), for appellee.

POTTER, Justice.

Plaintiff filed a bill in chancery to rescind the purchase of certain real estate in Wayne county, to discharge a real estate mortgage thereon, to restrain the foreclosure of such mortgage, to establish a lien on real estate for the money paid down thereon, and for other relief. From a decree for plaintiff, defendants appeal.

The case is here on an extensive record, has been fully briefed and exhaustively argued. The trial court filed an opinion therein which is sustained by the proofs, It is adopted as the opinion of this court.

‘Prior to 1924 the defendant, Henry Boehle owned a 160-acre tract of land in Ecorse township. In 1924 he and Mary Boehle, his wife, executed a conveyance of a part of said property, and in 1925 of the balance of said property to Robert M. Drysdale and his associates. The latter eventually merged in the organization of the Humphrey, Flanders, Drysdale Company. In 1925 two plats were executed covering respectively the north and middle one-third of this 160-acre tract. These two plats, although separately executed, correspond in street names, sizes of lots and general layout. In 1926 the southerly one-third was conveyed by the Humphrey, Flanders, Drysdale Company to Karen Hartwick. The southerly one-third was subsequently platted under rather peculiar conditions. A golf course was to be laid out upon it and was to be maintained for eight years, subsequent to which time the plat was to become effective. This plat also corresponds in layout, names of streets and other particulars with the plats of the northerly and middle thirds. So far as the record shows, no lots were ever sold in the southerly or Hartwick portion of the plat. Work was actually done on the golf course, but the testimony indicates that that work was subsequently abandoned for lack of funds. Lots were sold in the northerly and middle subdivisions and a general plan of restriction was established. The lots that were sold were under land contracts which were identical in terms for both subdivisions. Owing to the business conditions, the sale of lots was not as anticipated, and in March of 1930 the middle third as sub-divided was quit-claimed back to the defendant Boehle by the Humphrey, Flanders, Drysdale Company. Subsequently the northerly third was likewise conveyed back to him. At the time when the transactions occurred between the plaintiff and the defendants the situation was that Mr. Boehle had re-acquired the title to the middle third. He held a mortgage interest in the southerly third and still retained title subject to the contract of sale to the northerly third. Conditions being as indicated, the defendant Boehle verbally authorized one Montrie to procure a purchaser for the middle third, which was known as Humphrey, Flanders, Drysdale Subdivision No. 1. Montrie got in touch with one Geiermann and Mr. Geiermann presented the tract to Mrs. Labadie for her consideration. Mrs. Labadie at that time was possessed of means and a desire to enter into real estate operation with a view of herself constructing homes and reselling them. She desired a tract that would be secure from the encroachment of lower-class buildings than those that she desired to construct. She examined the property in question and also the northerly third and the southerly third. She held many conferences with Mr. Geiermann and went at length into all matters connected with the nature of the land in question, the subdivision, the restrictions, the likelihood of the continuance of those restrictions and the probability of the development of the entire 160-acre tract as a high-class residential section.

‘On two occasions Mr. Boehle was present. Mr. Geiermann was acting as the agent for Mr. and Mrs. Boehle and eventually secured written authority to represent them. This occurred when he discovered that Mr. Montrie had no such authority. Eventually a contract was entered into by which Mrs. Labadie undertook to purchase the property for $55,000 and paid $500 down to bind the original agreement. At this time Mrs. Labadie delivered what might be considered to be an ultimatum as far as her purchase of the property was concerned. She stated at a meeting at which Mr. Boehle was present but where Mr. Geiermann on his behalf did most of the talking that she must have assurance of a continuance of the conditions on both sides of Subdivision No. 1, and if she were not assured of the continuance permanently of the subdivisions on the northerly and southerly thirds of the tract as high-grade properties she would not for a moment consider a purchase.

‘There was a great deal of talk in regard to that subject, but it all resolved itself into her firm stand that she would not purchase except upon that one consideration. She was assured very definitely that it not only was Mr. Boehle's intention that the property would continue to be of that nature, but that it was impossible for the nature of the northerly and middle thirds at least to be changed because the rights of third parties had intervened.

‘A considerable number of lots had been sold upon contracts containing the identical restrictions which are shown in the contract attached to the bill of complaint in this case and marked Exhibit B thereto. It was stated on behalf of Mr. Boehle that those restrictions could not be altered by him because he was bound to maintain them and the sub- dividers were equally bound. Substantially the statement...