Schneider v. Fox

• Decision Date: 03 February 1977
• Docket Number: Docket No. 27881
• Citation: 252 N.W.2d 530,73 Mich.App. 595
• Parties: Edwin J. SCHNEIDER, Plaintiff-Appellee, v. William E. FOX, Executor of the Estate of Arthur O'Hearn, and Home for the Aged of the Little Sisters of the Poor, Inc., a Michigan Corporation, Defendants-Appellants. 73 Mich.App. 595, 252 N.W.2d 530
• Court: Court of Appeal of Michigan — District of US

Page 530

252 N.W.2d 530

Edwin J. SCHNEIDER, Plaintiff-Appellee, v. William E. FOX, Executor of the Estate of Arthur O'Hearn and Home for the Aged of the Little Sisters of the Poor, Inc., a Michigan Corporation Defendants-Appellants.

Docket No. 27881.

73 Mich.App. 595, 252 N.W.2d 530

Court of Appeals of Michigan.

Feb. 3, 1977.

Released for Publication April 27, 1977.

[73 MICHAPP 596] Bergstrom, Slykhouse & Shaw by James G. Black, Grand Rapids, for defendants-appellants.

James W. Bussard, Grand Haven, for plaintiff-appellee.

Before D. E. HOLBROOK, P. J., and ALLEN and RILEY, JJ.

PER CURIAM.

On August 7, 1973, Arthur O'Hearn died, leaving behind not only the usual assortment of personal effects but also a lawsuit waiting to happen. The facts are these: In a will dated October 7, 1958, O'Hearn specifically devised a 40-acre tract in Ottawa County to the defendant, Home for the Aged of the Little Sisters of the Poor, Inc., (hereinafter, "Home"). Nine years later, on December 20, 1967, O'Hearn contracted in writing to sell the identical parcel to plaintiff for $6,000, taking a $100 check as a deposit.

[73 MICHAPP 597] After O'Hearn's death, his will was admitted to probate, and defendant, William E. Fox, was appointed executor on September 13, 1973. Plaintiff then instituted suit for specific performance against defendant Fox and filed a lis pendens on July 12, 1974. By stipulation, Home was added as a party defendant on December 12, 1974. The lower court in its opinion of November 14, 1975, ruled that the written contract sufficed for statute of frauds purposes, ¹ that the statute of limitations did not bar suit and that the equitable defense of laches could not be lodged against plaintiff.

Defendants maintain on appeal that plaintiff's action was not timely filed against defendant Home ² since title to the property had already passed to Home on the date of O'Hearn's death.

In the present case, two statutory provisions combine to determine the applicable limitations period. Under M.C.L.A. § 600.5807(8); M.S.A. § 27A.5807(8) and its attendant committee comment which we expressly adopt, a suit for specific performance is seasonable if filed within six years of the date the claim first accrued. ³ Where, however, the vendor, [73 MICHAPP 598] as here, dies before or within 30 days after the expiration of the limitations period, M.C.L.A. § 600.5852; M.S.A. § 27A.5852 extends the time for suit an additional two years after the grant of "letters testamentary". ⁴ Since plaintiff commenced his action against Home well within the extended time allowed by M.C.L.A. § 600.5852, we believe the lower court correctly ruled that the statute of limitations was no impediment to suit.

This conclusion is buttressed by other statutory provisions which here obtain. Specifically, M.C.L.A. § 707.19; M.S.A. § 27.3178(399) authorizes a fiduciary to convey lands to a vendee where all conditions precedent are met and where the vendor dies before the conveyance can be completed. ⁵ Moreover,[73 MICHAPP 599] M.C.L.A. § 709.49; M.S.A. § 27.3178(509) and M.C.L.A. § 709.54; M.S.A. § 27.3178(514) taken together permit a vendee under a land sale contract to sue for specific performance in either the probate or circuit court where a fiduciary of the decedent-vendor refuses to convey the property. ⁶

Thus, the trial court properly held, as we do, that if defendant's contention were to govern (i. e., "that the will passes title retroactive to the date of death in this case running the statute of limitations as against the specific devisee"), it would effectively nullify M.C.L.A. §§ 707.19, 709.49, 709.54 and M.C.L.A. § 709.52; M.S.A. § 27.3178(512). To adopt defendant's interpretation would violate the familiar constructional rule requiring courts to give due weight to each and every provision within a statute. See, General Motors Corp. v. Erves, 395 Mich. 604, 617, 631, 236 N.W.2d 432 (1975), Dussia v. Monroe County Employees Retirement System, [73 MICHAPP 600] 386 Mich. 244, 248, 191 N.W.2d 307 (1971), Stowers v. Wolodzko, 386 Mich. 119, 133, 191 N.W.2d 355 (1971), and Peters v. Dept. of State Highways, 66 Mich.App. 560, 563, 239 N.W.2d 662 (1976).

Defendants assert that the lower court's construction of the foregoing statutes renders nugatory M.C.L.A. § 702.10; M.S.A. § 27.3178(80). ⁷ We are not persuaded. On the contrary, the provision meshes well with M.C.L.A. §§ 707.19, 709.49, 709.52 and 709.54; indeed, the statutes operate in synergy. While M.C.L.A. § 702.10 expressly states that any post-will contract to sell property does not work a revocation of the devise (unless clearly intended) and that the property shall pass to the devisee, this provision, like the others heretofore considered, specifically preserves the vendee's right of specific performance against the devisee.

Since a devisee can take rights in land no greater than those possessed by the testator, Ripley v. Seligman, 88 Mich. 177, 195, 50 N.W. 143 (1891), we hold Home's title to the 40 acres to be subject to, pursuant to the forementioned statutes, plaintiff's valid claim for specific performance. Hence, no error flowed from the lower court's order to enforce the conveyance.

[73 MICHAPP 601] Lastly, defendants contend that it is inequitable under the doctrine of laches to enforce presently a contract formed in 1967, given the marked escalation of land values since that time. On this issue, the lower court held:

"While this Court is well aware of the increment in value of real estate from 1967 to 1974, this Court, based on the testimony of Rosemary VanderLaan (decedent's cousin,) notes that until just prior to his death, Arthur O'Hearn not only acknowledged the existence of the contract with plaintiff, but also opined that this manner of property holding was to his advantage as a valuable investment. Through plaintiff's testimony the Court learned that the reason for the delay in performing the contract was because Arthur O'Hearn didn't want payment and transfer of title until his death. Whatever advantages, if any, there existed by the delay to Mr. O'Hearn this Court does not know. This Court is satisfied, however, that the delay was caused by Arthur O'Hearn and not plaintiff."

Having reviewed the entire record de novo, and according due regard to the trial court's superior ability to assess the credibility and demeanor of the witnesses, we hold that the lower court's finding absolving plaintiff of laches is not clearly erroneous. Rhoades v. Barcal, 65 Mich.App. 315, 319, 237 N.W.2d 306 (1975). No different result would we have reached had we occupied the factfinder's chair. Accordingly, this cause is affirmed.

Costs to plaintiff.

1 The defendants do not appear to dispute this portion of the judge's ruling.

2 The defendants concede plaintiff's suit is timely vis a vis defendant Fox.

3 "Sec. 5807. No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.

(8). The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract.

"Committee comment. Section 5807 states the periods of limitations relating to contract damage remedies and extends their application to actions for specific performance of contracts." M.C.L.A. § 600.5807(8); M.S.A. § 27A.5807(8) and Committee Comment.

In this case, there being no precise time for performance specified in the contract, plaintiff could have sought the contract's enforcement at any time within the six-year limitations period. See 71 Am.Jur.2d, Specific Performance, § 63, pp. 91-92.

4 M.C.L.A. § 600.5852; M.S.A. § 27A.5852 provides:

"Sec. 5852. If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by or against the executor or administrator of the deceased person or the claim may be proved as a debt against the estate of the deceased person, as the case may...