Lemon v. Nicolai, Docket No. 10131

• Decision Date: 20 May 1971
• Docket Number: Docket No. 10131,No. 2,2
• Citation: 190 N.W.2d 549,33 Mich.App. 646
• Parties: Gerland H. LEMON and Virginia R. Lemon, husband and wife, Plaintiffs-Appellees, v. Alfred F. NICOLAI and Virginia L. Nicolai, husband and wife, Defendants- Appellants, v. James Patrick CONLEY and Alice E. Conley, husband and wife, Third-Party Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 549

190 N.W.2d 549

33 Mich.App. 646

Gerland H. LEMON and Virginia R. Lemon, husband and wife, Plaintiffs-Appellees, v. Alfred F. NICOLAI and Virginia L. Nicolai, husband and wife, Defendants- Appellants, v. James Patrick CONLEY and Alice E. Conley, husband and wife,

Third-Party Defendants-Appellants.

Docket No. 10131.

Court of Appeals of Michigan, Division No. 2.

May 20, 1971.

Released for Publication Oct. 11, 1971.

Donald A. Moon, Brighton, for defendants-appellants.

E. Reed Fletcher, Howell, for plaintiffs-appellees.

Before J. H. GILLIS, P.J., and FITZGERALD and T. M. BURNS, JJ.

FITZGERALD, Judge.

This is an appeal as of right by defendants Nicolai and Conley from a judgment entered in the Livingston County Circuit Court on August 11, 1970, and amended on August 27, 1970. Said judgment forfeited the rights of the defendants in a land contract with plaintiffs. The judgment also awarded possession of the land in question to plaintiffs, subject to an equity of redemption in defendants to be exercised within 90 days of the judgment.

On May 2, 1967, plaintiffs sold the land in question to defendants Nicolai on a land contract for $14,500. The Nicolais paid $1,500 down and agreed to pay $80 or more each month, with 6% Interest per year being levied against the unpaid balance. The contract provided in part that any assignment of the contract without the written consent of the vendors (plaintiffs) would amount to a breach of the contract. After such a breach, vendors could bring suit to accelerate payments, recover possession of the property, and enforce their rights in law or equity.

After having made 15 timely payments of $80 each, thereby reducing the unpaid balance to $12,766.95, the Nicolais, on August 10, 1968, assigned the contract to defendants Conley without seeking plaintiffs' written consent.

Rather than accept payments from the Conleys, plaintiffs gave notice of their intention to hold the Nicolais in breach of contract and seek a forfeiture. An action was commenced on December 17, 1968, to that end. At trial, the Conleys testified as to their willingness and ability to assume all obligations under the contract. They could not, however, pay the Entire unpaid balance held to be due. Plaintiffs showed no interest in discovering facts concerning the relative security of their interests under the contract with the Conleys an assignees as opposed to the Nicolais. It appears that plaintiffs simply want their land back.

Defendants claim that the provision prohibiting the assignment of the land contract without plaintiffs' consent, compled with plaintiffs' refusal to consider whether any change in their risk under the contract has occurred, operates in this instance as an unreasonable restraint on the alienation of property. Therefore, defendants seek reversal of the circuit court judgment that the Nicolais' assignment to the Conleys operated as a forfeiture of their rights under the contract. Defendants further ask that the plaintiffs be held at a minimum, to the reasonable duty of considering whether or not the assignment has had any adverse effect on their rights under the contract.

This case is similar to Pellerito v. Weber (1970), 22 Mich.App. 242, 177 N.W.2d 236, wherein this Court stated its position on restraints on alienation of property:

'Restraints on alienation of property are strongly disfavored in Michigan. Mandlebaum v. McDonell (1874), 29 Mich. 78, 107; Fratcher, Restraints on Alienation of Equitable Interests in Michigan Property, 51 Mich.L.Rev. 509 (1953). Wher...