Langley v. Kirker

• Citation: 225 N.W. 931,247 Mich. 443
• Decision Date: 20 June 1929
• Docket Number: No. 97.,97.
• Parties: LANGLEY et al. v. KIRKER et al.
• Court: Supreme Court of Michigan

247 Mich. 443

225 N.W. 931

LANGLEY et al.

v.KIRKER et al.

No. 97.

Supreme Court of Michigan.

June 20, 1929.

Error to Circuit Court, Oakland County; Frank L. Doty, Judge.

Action by Frank Langley and another against John G. Kirker and another. Judgment for plaintiffs, and defendants bring error. Affirmed.

Argued before the Entire Bench.

George A. Cram, of Pontiac, for appellants.

Hollis C. Martin, of Royal Oak, for appellees.

FEAD, J.

This is review of a judgment of restitution in summary proceedings in which $1,152.75 was found due on land contract, $825 representing principal and the balance taxes and interest. The land contract was dated April 9, 1927, and the consideration was $24,500. The contract provided for payment in full within 2 years and for warranty deed conveying marketable title free from incumbrances on full payment. However, it permitted vendors to mortgage the premises for not more than 50 per cent. of the purchase price paid and to be paid under the contract, the mortgages to be payable in not less than 3 nor more than 5 years, required plaintiffs to make prompt payment of interest and principal on mortgages existing at the date of the contract or thereafter executed, stated that, in default of such payment by plaintiffs, defendants could pay the amounts due and credit them on their matured or first maturing contract installments, that purchasers could mortgage the premises if necessary to discharge such mortgages given by plaintiffs, and also provided that, when the unpaid contract amount had been reduced to that of the outstanding mortgages, plaintiffs should execute to defendants a proper deed with a covenant by defendants to assume and pay the mortgages.

On April 8, 1927, plaintiffs executed a mortgage for $10,000, payable in installments within 5 years. On April 9 they executed another mortgage for $2,000, payable in 2 1/2 years. These mortgages preceded execution of the contract and were not only known to the defendants when they took the contract, but they were negotiated with the consent and for the accommodation of the defendants, to enable them to sooner obtain a deed.

On July 23, 1928, plaintiffs served notice of forfeiture by registered mail. When these proceedings were commenced, there were no delinquent principal sums on the mortgages, but plaintiffs owed $125 interest, due on the larger one in April, 1928. Their delinquency was caused, principally, by defendants' failure to make payments; defendants being in default when the interest became due. The mortgage contains an acceleration clause, but there was no evidence that the mortgagee had attempted or intended to enforce it.

Invoking the rule that a vendor is not entitled to forfeit a land contract when he himself is in no position to perform by making conveyance in accordance with the terms of the contract, defendants claim three breaches...