Robinson v. Campbell, 125.

• Decision Date: 22 March 1923
• Docket Number: No. 125.,125.
• Citation: 222 Mich. 111,192 N.W. 644
• Parties: ROBINSON v. CAMPBELL et al.
• Court: Michigan Supreme Court

222 Mich. 111

192 N.W. 644

ROBINSON

v.CAMPBELL et al.

No. 125.

Supreme Court of Michigan.

March 22, 1923.

Appeal from Circuit Court, Wayne County, in Chancery; Frederick W. Mayne, Judge.

Suit by Benjamin Robinson against William C. Campbell and another for the specific performance of a land contract. Decree for plaintiff, and defendants appeal. Decree set aside, and case remanded for transfer to law side of court or dismissal.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, and STEERE, JJ. Robert M. Brownson, of Detroit, for appellants.

John R. Rood, of Detroit, for appellee.

STEERE, J.

Plaintiff filed this bill to compel specific performance of a land contract given to him by defendant Campbell, reading as follows:

‘$50.00 Detroit, Mich., January 28, 1916.

‘Received by Benjamin Robinson fifty dollars on account of contract for lot one (1) Yeaman's addition to Highland Park Village 105 Hamilton-125 on Glendale-128 on Leslie unrestricted.

‘The balance of four hundred and fifty dollars when contract is signed and twenty-five hundred dollars four months from date of contract, seven thousand dollars on or before five years from date of contract. A good and merchantable title to be furnished. W. C. Campbell.’

The property which he sought to compel conveyance of was also involved in Craig v. Crossman, 209 Mich. 462, 177 N. W. 400, in which Crossman and Campbell were also defendants. In that case Craig sought, and obtained, specific performance of a land contract covering this property.

While that suit was pending, Campbell, who is said to be an attorney, planted the seed for another lawsuit by negotiating this sale of the property to plaintiff. He claims to have then fully advised the latter or his agent of the Craig litigation, which plaintiff denied. Campbell had previously contracted to sell this property to Craig's assignor, and then gave Crossman a deed to it, recorded April 27, 1912, which they claimed was in the nature of a mortgage.

It is undisputed the Craig suit was begun in the circuit court of Wayne county, in chancery, on April 5, 1913. A lis pendens of the Craig suit was put on record at the time it was begun. Decree for specific performance was granted to Craig by the circuit court on March 20, 1917, which was appealed to and affirmed by this court on April 10, 1920.

Plaintiff had constructive notice of the Craig suit by virtue of the lis pendens when he negotiated for and obtained the agreement of January 28, 1916, from Campbell to sell him the property for $10,000, on payment of $50 down with deferred payments for the balance. He also was a real estate operator running on high speed and says the price he agreed to pay ‘was way below the market.’ He claimed that he then knew nothing about the Craig Case, and relying on Campbell's agreement for a merchantable title he promptly and successfully proceeded, with the help of another real estate man named Osterly, to negotiate a sale of the property for $12,600 to W. W. Chapin on payment of $100 down, giving him a memorandum of agreement dated February 19, 1919, somewhat similar but more elaborate than that he received from Campbell. By its terms a second payment of $3,000 was to be made ‘upon the execution of a land contract, said contract to be executed within ten (10) days after delivery of a Burton abstract, brought down to date, showing a good, merchantable and sufficient title, free and clear of all liens and incumbrances of every kind and character.’

Plaintiff then proceeded to investigate the title and submitted an abstract he obtained from Campbell to his attorney, who on reading it advised him of the situation and Campbell's inability to give him a good, merchantable title. His efforts with Campbell produced no results beyond optimistic assurrances, which were not satisfying to Chapin, who pressed plaintiff to carry out the terms of his agreement with him. Unable to do so, he finally obtained from Chapin a cancellation of their contract by returning him the $100 and paying him $75 more. After final demand of Campbell to furnish him a good, merchantable title, contingent on which he offered performance on his part, plaintiff filed this bill asking that Campbell be decreed to settle the imperfections in his title arising from the Craig suit and ‘furnish to plaintiff a good and merchantable title to said premises,’ tendering on his part payment and full performance according to their agreement.

This suit asking as ground of equity jurisdiction specific performance of a contract made January 28, 1916, was begun to compel conveyance to plaintiff of a good and lawful title to property which by a deed dated April 9, 1912, and recorded in a liber of deeds of Wayne county April 27, 1912. Campbell had previously conveyed to Crossman, and for specific performance of a previous contract to convey Craig had, on April 5, 1913, commenced suit against Campbell and Crossman, with a lis pendens filed to protect his claim. Plaintiff had both constructive and actual notice of that situation when he brought suit. When this case was heard and decided, specific performance of the contract which Craig held, compelling conveyance of the property to him, had been decreed in the circuit court and affirmed on appeal. Concededly the court could not decree specific performance in plaintiff's favor, and his alleged ground of equitable jurisdiction was not established. Neither did it exist when he commenced his suit, for the rights of the parties in the Craig Case of which he had notice were then fixed.

Crossman was made a party to this suit under an allegation that while the legal title was in him he held it for Campbell and had given the latter an instrument in writing acknowledging he so held it. Apparently on that theory the bill prays that Campbell be decreed ‘to settle any claim, interest or lien that the other defendants herein had in and to said premises,’ and then specifically perform by furnishing plaintiff a good, merchantable title thereto. Yet he knew before filing his bill that if Craig prevailed in his suit specific performance of Campbell's agreement to sell him the property could not be enforced, and the only relief open to him...