Ogden v. Moore

• Decision Date: 14 April 1893
• Citation: 95 Mich. 290,54 N.W. 899
• Court: Michigan Supreme Court
• Parties: OGDEN v. MOORE.

54 N.W. 899

95 Mich. 290

OGDEN v. MOORE.

Supreme Court of Michigan

April 14, 1893

Appeal from circuit court, Osceola county; J. Byron Judkins, Judge.

Bill by Stewart Ogden against William Moore to compel specific performance of an agreement by defendant to purchase certain land from complainant. A demurrer to the bill was overruled and defendant appeals. Reversed.

Charles A. Withey, for appellant.

Melville Stone, for appellee.

McGRATH J.

This is a bill filed to enforce specific performance of a land contract. R. entered into a written contract for the sale to G. of lot 13, block 9, in the village of Reed City. G subsequently entered into a written contract for the sale of 24 feet off the north end of lot 13 to H., and H. went into possession of the 24 feet, erecting a stable thereon, and remaining in possession. G. afterwards assigned the first-named contract to O., the complainant. The assignment is indorsed upon the contract, and transferred to O. all G.'s "right, title, and interest." O "orally agreed" to carry out G.'s contract with H. O. went into possession of lot 13, except as to the 24 feet, and erected a livery barn thereon, and stocked the same. The bill, after setting forth the foregoing, alleges that subsequently, O. being in possession of said premises and "being desirous of selling said premises, and the said stock of livery, and one William Moore being minded to purchase the same, your orator and said William Moore entered into an agreement in writing respecting the sale and purchase of said premises, and said stock of livery; a copy of said agreement, and inventory of said stock, being hereto attached, and marked 'Exhibits B and C."' Said agreement is an ordinary land contract, in which O. agrees to sell and convey to M. lot 13, of block 9, upon payment of a sum fixed, the last installment of which was to become due and payable April 8, 1889, and M. agrees to purchase said lot 13 at the price named. O. agrees, on receiving payment, to execute and deliver to M. a good and sufficient deed of the described premises. H. is not mentioned in said contract, nor is any reference made to the 24 feet aforesaid. The bill further states that the situation was fully explained to M and that M. was informed of H.'s interest, and of O.'s obligations respecting that interest. That "it was then and there agreed by and between your orator and said William Moore that the said Moore would purchase said premises, and assume and carry out the terms of the oral agreement existing between your orator and said George H. Gilbert, as above stated. And it was fully and fairly understood by and between your orator and said William Moore that your orator would sell and convey, and that said Moore purchased, said lot 13, of block nine, (9,) of the village of Reed City, excepting and reserving said 24 feet off the north end thereof. And the said William Moore then and there assumed and agreed to carry out the terms of your orator's oral agreement with respect to the same, and to deed and convey said 24 feet to the said Howden, or his assigns, upon his, said Moore's, acquiring title thereto." That Moore was put into possession of the premises, except said 24 feet. That the last installment of the purchase price has become due and payable from said M. to O. That O. has procured from R. a deed of the entire lot. That he tendered a deed of said lot, except said 24 feet, to M., but M. refused to accept said deed, and refused and neglects to pay the said last installment, and "refuses to stand to and abide by the terms and conditions of the oral contract entered into on his part with your orator, and claims that your orator is bound to convey to him all of said lot 13, and that your orator must dispossess and remove the parties in possession of said north 24 feet, and that he, said Moore, should have full title and entire possession of all of said lot, and claims that the oral agreement made between your orator and said Moore is of no force and effect; that his...