Mortg. & Contract Co. v. Sage

• Decision Date: 06 March 1934
• Docket Number: Motion No. 118.
• Citation: 266 Mich. 165,253 N.W. 255
• Court: Michigan Supreme Court
• Parties: MORTGAGE & CONTRACT CO. v. SAGE et al.

266 Mich. 165

253 N.W. 255

MORTGAGE & CONTRACT CO.

v.SAGE et al.

Motion No. 118.

Supreme Court of Michigan.

March 6, 1934.

Appeal from Circuit Court, Wayne County; DeWitt H. Merriam, Judge.

Petition by the Mortgage & Contract Company against Robert E. Sage, a circuit court commissioner in and for the county of Wayne, and another, for a writ of mandamus. From an order denying the writ, plaintiff appeals.

Affirmed.

Argued before the Entire Bench.

Dale H. Fillmore, of Detroit (Roy A. Moxley, of Detroit, of counsel), for appellant.

Oscar A. Kaufman, Co. Corp. Counsel, of Detroit, for appellees.

NELSON SHARPE, Chief Justice.

There is no dispute about the facts in this case. The plaintiff, as vendor, brought a summary proceeding before the defendant circuit court commissioner to recover possession of certain real estate sold under land contract, executed on October 26, 1926, to Louis Laczo and Elizabeth Laczo, his wife, and which had been duly forfeited. A judgment of restitution was rendered on June 17, 1933. No appeal was taken therefrom. On July 31, 1933, it applied to the defendant commissioner for a writ of restitution, and, on his refusal to grant the same, petitioned the circuit court of the county of Wayne for a mandamus to compel such action on his part. From an order denying the writ, it has taken this appeal.

At the time the contract was entered into, the statute under which the application for the writ of restitution was made (3 Comp. Laws 1929, § 14988) provided that it should not issue ‘until the expiration of thirty (30) days after the entry of judgment of restitution.’ Before the entry of the judgment, and on June 13, 1933, this section was amended by Act No. 122, Pub. Acts 1933, by changing the word ‘thirty’ to ‘ninety,’ and given immediate effect.

The action of the commissioner and of the circuit court was based upon this amendment, and the question here presented is whether it impairs the obligation of the contract entered into on October 26, 1926, and for that reason violates the Constitution (article 2, § 9).

While the complaint made to the commissioner and the summons issued thereon and the judgment of restitution do not appear in the record, it is apparent from the statement of facts, agreed upon, that the proceedings were based upon the default of the vendees and, as stated in the petition for mandamus and admitted in the return thereto, that the contract had ‘been duly forfeited and their rights thereunder terminated, exception as to the matter of possession of the premises therein involved.’ The statute (section 14975 et seq.) provides for such proceedings, and they were taken pursuant thereto. The vendor was not, however, confined thereto. As was said by Mr. Justice Potter in Balesh v. Alcott, 257 Mich. 352, 354, 241 N. W. 216, 217:

‘Plaintiff had an election of remedies at the time the default occurred on the part of the assignee of the vendee. She could declare the contract forfeited and begin summary proceedings under the statute above mentioned, or she could file a bill for the foreclosure of the contract. The one would proceed upon the theory the contract was at an end; the other, upon the theory the contract was in force. She could not do both. She could not elect to declare the contract forfeited and declare the same to be in force. She could not in one proceeding take the position it was void and in another proceeding it was valid. She could not declare the contract out of existence in one lawsuit and in existence in another.’

This proceeding was not instituted to terminate the contract, or to enforce it, or to adjudicate any of the contract rights of the parties under it. The vendor, by the default or the notice of forfeiture served, if one was necessary under its terms, elected to terminate the contract, and its right to recover possession under the statute is based thereon.

‘The rule that the vendor must terminate the contract relations by notice of forfeiture or otherwise, or that the defendant must do some act or thing which of itself determines the contract relation, before proceedings to recover possession of premises can be begun, is well settled.’ Miner v. Dickey, 140 Mich. 518, 521, 103 N. W. 855, 856.

‘Independent of...