Phillips v. Stauch

• Decision Date: 10 May 1870
• Citation: 20 Mich. 369
• Court: Michigan Supreme Court
• Parties: John W. Phillips v. George Jacob Stauch

20 Mich. 369

John W. Phillips v. George Jacob Stauch

Supreme Court of Michigan

May 10, 1870

Heard May 5, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal in Chancery from Oakland Circuit.

John W. Phillips filed his bill in the Circuit Court for the County of Oakland in Chancery, to obtain the specific performance of a contract, by which George Jacob Stauch agreed to convey to him, a farm in Oakland County, of about ninety-two acres; on which, at the time of the contract, Stauch was residing with his family. The facts of the controversy were settled by stipulation, as follows:

"First. That on the 12th day of January, 1869, the said defendant was the owner, seized in fee, of the premises described in the complainant's bill of complaint; and that the defendant was then in the possession of said premises, and that upon that day he, the defendant, made, executed and delivered to said complainant a bond for a deed of said premises, upon an agreement for the sale of the same by the said defendant, to said complainant. This purchase, by said complainant, included the wheat on the ground, and the coarse fodder which should be on the premises on the first day of April, 1869. Also, that the complainant was allowed by said defendant to take possession of said premises under said agreement to purchase, on or about the 20th day of March, 1869; and he moved on said premises with his family, and has ever since remained in possession of said premises, under and in pursuance of said agreement."

The bond referred to was conditioned that the defendant should convey the premises to the complainant by a good and sufficient warranty deed, duly witnessed, &c., on or before the first day of April, A. D. one thousand eight hundred and sixty-nine: "Provided that the said John W. Phillips, his heirs, executors, administrators or assigns, pay to said George Jacob Stauch, for the said land as follows, fifty dollars per acre: Fifteen hundred dollars on the first day of April, 1869, and the balance to be secured by a mortgage on the said land, at seven per cent. interest.

"Second. On the first day of April, 1869, the parties met at Royal Oak, but the complainant not having yet received his money did not pay the said fifteen hundred dollars; said defendant demanded said money, and offered to make a deed, but the complainant told the defendant he could not pay that day, but if he insisted on the payment at once, he would get the money and pay the $ 1,500 in a day or two. The defendant did not on said day tender the complainant any deed, but said he was ready to make one, and he had a deed drafted but not signed. Said complainant, on the third day of April, 1869, tendered to said defendant the said sum of fifteen hundred dollars, having before the first day of April, 1869, to wit, on the day after the agreement, paid to said defendant the sum of sixteen dollars of said purchase money, and said complainant, also, on the third day of April, offered to make and execute a mortgage on said premises to secure the balance of said purchase money to said defendant, according to said bond.

"That said complainant demanded a deed of said defendant, according to the terms of the bond; said defendant refused to accept said money or make a deed. After said third day of April, the said defendant commenced a suit against said complainant, before the Circuit Court Commissioner of said County of Oakland, to recover the possession of the premises. Afterwards, the complainant commenced this suit.

"On the 16th day of April, 1869, the said defendant tendered to the complainant a warranty deed of said premises, executed by the said defendant, but not executed by his wife, and said defendant demanded of said complainant the payment of said sum of fifteen hundred dollars, and the execution of a note and mortgage, for the balance of the purchase money of said premises. The complainant refused to accept said deed and pay over said money, and execute said note and mortgage, for the reason that said deed was not executed by the wife of said defendant."

"It is also admitted, that at the time of making said contract for the sale of said premises, said defendant had a wife, and with his wife and family resided upon said premises, as his homestead, and that afterwards, and before the first day of April, 1869, said defendant, with his wife and family moved off said premises, and into Macomb county, where he has since resided with his wife and family. That at the time he, said defendant, so executed said deed, he had a wife, and that his wife is still living, and is the lawful wife of said defendant, and she refuses to execute said deed. Afterwards, and on the said 16th day of April, 1869, the said fifteen hundred dollars was paid into Court by said complainant, in pursuance of the order of Court, dated 17th January, 1870."

The cause having been heard upon pleadings and proofs, a decree was entered that the defendant should within forty days execute and deliver a warranty deed, with the usual full covenants, and bearing date the 1st day of April, 1869, conveying to the said John W. Phillips, the premises described in said bill of complaint, with the full release of the right of dower of Barbara Stauch, his wife, to said premises; but in case she should refuse to execute said release, or to join in said deed for that purpose, that then the said George Jacob Stauch execute the deed by himself as aforesaid, and deliver the said deed to the Register, to be delivered over to said complainant upon the compliance by said complainant on his part with the terms of said agreement, as hereinafter specified. These terms were the payment of the money as agreed, and the execution of a mortgage to secure the deferred payments.

The decree further "ordered, that unless the said defendant, George Jacob Stauch shall procure the release by the said Barbara Stauch, his wife, of her right of dower in said premises, there shall remain in abeyance of said purchase money the sum of one thousand five hundred and thirty-nine 33-100 dollars, (being one-third of the purchase money) of the last payment thereof, being the eight hundred dollar payment which is to become due on the first day of April, 1875; and the payment of five hundred dollars to become due on the first day of April, 1874, and the sum of two hundred and thirty-nine 33-100 dollars of the payment to become due on the first day of April, 1873, the principal of which shall not become payable until the said defendant shall procure the release of the right of the dower of the said Barbara Stauch, his said wife, or until said right of dower shall become extinguished in said premises by the act or deed of the said Barbara Stauch, or by the operation of law, but that in every other respect, both as to principal payments and interest, the said mortgage shall stand and remain in full force."

The decree contains some further provisions to secure its enforcement.

From this decree the defendant appeals to this Court.

Decree reversed, and one entered in this Court dismissing the bill, but without prejudice to any proceeding at law.

M. E. Crofoot and C. I. Walker, for complainant.

I. It is well settled by repeated decisions of this Court, as well as others, that where it is not expressly stipulated by the terms of the contract that time shall be of the essence thereof, a court of equity will releive a party in default, where there would be no particular hardship imposed upon the party against whom the execution of the contract is sought to be enforced.--Bomier v. Caldwell, 8 Mich. 463; Wallace v. Pidge, 4 Mich. 570; Morris v. Hoyt, 11 Mich. 9; Richmond v. Robinson, 12 Mich. 193; 2 Story's Eq. Jur., § 775; 3 Leading Cases Eq., 83-4.

II. The defendant, by his bond covenanted to excute and deliver to complainant "a good and sufficient warranty deed duly witnessed and conveying," &c., the premises. A conveyance, good in form, does not satisfy such a covenant unless the deed conveys a clear, unincumbered, sufficient title to all the lands.--Dwight v. Cutler, 3 Mich. 566; Pomeroy v. Drury, 14 Bard. 418; Clute v. Robinson, 2 Johns. 595; Judson v. Wass, 11 Ib. 525; Fletcher v. Button, 4 Comst. 398; Stow v. Stevens, 7 Vt. 29; Tremain v. Tinning, Wright, 644; Dearth v. Williams, 2 Sergt. & Rawle, 498; Hunter v. O'Neil, 12 Ala. 37; Burwell v. Jackson, 5 Seld. 535; Swan v. Drury, 22 Pick. 485.--Where an inchoate right of dower exists, as in this case, a deed without a release of that right is not a compliance with the terms of the contract, and the purchaser is not bound to accept such a deed as a fulfilment thereof.--Rawle on Covenants for Title, 121 to 135; Shearer v. Ranger, 22 Pick. 447; Jones v. Gardner, 10 Johns. 266; Pomeroy v. Drury, 14 Barb. 418; Park v. Brooks, 16 Ala. 529; Porter v. Noyes, 2 Me. 22.--Nor on the tender of such a deed could the vendor enforce specific performance.--Fulton v. Wright, 18 Pick. 405,--But the vendee may in just such a case enforce specific performance as against the vendor, and have a deduction made from the purchase price, of the value of the right of dower.--3 Leading Cases Eq. 72, 89, 90; 2 Story's Eq., § 779; Woodbury v. Luddy, 14 Allen 1; Davis v. Parker, 14 Allen 94; Wright v. Young, 6 Wis. 127; Springle v. Shield, 17 Ala. 295; Hazelrig v. Hutson, 18 Ind. 481.

III. There can be no defense in this action based upon the ground that at the time the contract was made the premises in question were a homestead.

First. The question is not raised by the pleadings. The answer incidentally and indirectly states that the premises were at the time of the contract occupied as a homestead, but it is not averred that it was a...