Snider v. Schaffer

• Decision Date: 11 June 1936
• Docket Number: No. 38.,38.
• Citation: 276 Mich. 92,267 N.W. 791
• Parties: SNIDER v. SCHAFFER et al.
• Court: Michigan Supreme Court

276 Mich. 92

267 N.W. 791

SNIDER

v.SCHAFFER et al.

No. 38.

Supreme Court of Michigan.

June 11, 1936.

Suit by James E. Snider against Julius Schaffer, Jr., and Fred Schug, executors of the last will and testament of Julius Schug, deceased, and others. From an adverse decree, plaintiff appeals.

Affirmed.Appeal from Circuit Court, Isabella County, in Chancery; Ray Hart, judge.

Argued before the Entire Bench.

C. A. Reading, of Ann Arbor, and O'Keefe & O'Keefe, of Saginaw, for appellant.

Leibrand & Leibrand, of Bay City, for appellees.

BUSHNELL, Justice.

Julius Schug, now deceased, and Caroline, his wife, were at one time the owners of the 80-acre farm in question in Isabella county; their daughter Caroline, defendant herein, married plaintiff, James E. Snider, by whom she had four children, Rolland, Erma, Earl, and Verna Mae, who were later joined as defendants in this action. Mrs. Snider died intestate during the pendency of the cause below; her son Rolland being appointed administrator of her estate. The remaining defendants, Lena Schaffer, Rose House, Albert and Fred Schug, were the sisters and brothers of Mrs. Snider, who, with the widow Caroline, are the sole heirs at law of Julius Schug. Julius Schaffer, Jr., and Fred Schug are executors of Mr. Schug's last will and testament.

Plaintiff claims that he and his wife purchased the 80 acres from Mr. and Mrs. Schug on a land contract, dated August 15, 1908, for $3,500, payable at the rate of $100 per annum, with interest at 6 per cent. on unpaid balances. Although he claims interest has been paid, little was paid to the Schugs on principal, but they, on the other hand, never served a notice of forfeiture of the land contract on the Sniders or took any steps to recover possession of the farm.

In 1927 Snider and wife executed and delivered an oil lease on the land to Clyde Fisher and Charles Wagner, which lease was assigned to the Pure Oil Company. Some time in 1929 the Sniders were approachedby Isaiah Leebove, who also desired an oil and gas lease on the premises; he examined the 1927 lease, and expressed the opinion that it was invalid. It is further claimed that Leebove met the Sniders at the Schug home where the situation was discussed; subsequently a new lease was executed by the Schugs to the Mammoth Oil Company and witnessed by plaintiff. It is further claimed that in the presence of all the parties, and without objection by any of them, the 1908 land contracts were burned by Leebove. Under the Mammoth lease the Schugs were to receive a royalty of one-eighth of the net proceeds of the gas and oil produced; drilling was to commence on or before 90 days, and the Schugs warranted and agreed to defend their title to the land. This lease was dated May 18, 1930.

On April 3, 1930, Snider and wife executed an affidavit in which they related the circumstances regarding the Fisher-Wagner lease and swore that in 1907 the farm was owned by Julius Schug and they were merely permissive occupants, and that: ‘At no time did your deponents ever have title to or interest in the aforedescribed farm other than as before mentioned, but to the best of their knowledge title has always been and still is in Julius Schug.’

This affidavit was later used in the settlement of a suit by the Schugs against the Pure Oil Company; Snider being an active participant in aiding them to secure the cancellation and release of the claims of the Pure Oil Company to drilling rights on this land.

The Mammoth lease resulted in productive drilling and considerable revenue to the Schugs. In 1931 Mr. Schug determined that he would convey the land in question to Mrs. Snider, but would reserve to himself one-half of the royalties under the lease. He accordingly delivered a deed, in which his daughter Caroline was named as grantee, to Harold Schaffer, his grandson, as escrow agent to be held by him until $2,850 was paid by Mrs. Snider or he had received this amount in royalties. Plaintiff claims this was the balance due at the time upon the original land contract; in any event, the parties agreed upon this amount. After the conditions of the escrow were fully performed, the deed was recorded by Schaffer and then delivered to Mrs. Snider. Plaintiff joined with his wife on June 15, 1932, in executing a receipt and release to the escrow agent.

Plaintiff filed this bill of complaint in 1933 in which he recites continuous possession of the premises since 1908 and alleges an oral agreement on the part of the Schugs in 1929, before drilling was commenced, to deed the property to plaintiff and his wife when the royalties equalled the unpaid balance, conditioned upon surrender of the original land contract. Plaintiff prayed for an accounting of the royalties received by Schug and specific performance of the written contract of 1908 and the oral agreement of 1929.

During the pendency of the action, and after her default as a defendant and appearance as an adverse witness for plaintiff, Mrs. Snider died. The cause was reopened by consent to permit the appearance of her heirs and legal representatives, and further testimony was taken, including that supporting the existence of the 1908 contract.

Over plaintiff's objections, defendants introduced in evidence the records of the probate court pertaining to the estate of Caroline Snider, deceased, among these being a sworn inventory filed by James Snider in his capacity as her special administrator, showing title to the south one-half of the southwest one-fourth of section 22, township 16 north range 4 west (the property in question) in his deceased wife.

The decree of the trial court dismissed plaintiff's bill of complaint against all of the defendants except plaintiff's deceased wife, Caroline, and her heirs, so that we assume all that is actually in controversy in the appeal before us is the disposition by Julius Schug of one-half of the one-eighth royalties, which by his last will and testament went to his widow Caroline Schug. This, we further assume, by reason of plaintiff's request that we enter a decree requiring the executors and the widow to convey to him all of the oil, gas, and minerals reserved by him in the deed to Mrs. Snider and pay to him $6,058.10 collected in royalties by the grantors in his lifetime as well as those collected by either of them since October 1, 1933; Mr. Schug having died testate on April 15, 1933.

Specific performance of contracts, whether oral or written, is a remedy of grace and not of right; it rests in the sound discretion of the court to be decreed or not as shall seem just and equitable under the peculiar circumstances of each case. McClellan v. Moore, 272 Mich. 630, 262 N.W. 427.

The original land contract was destroyed, but witnesses other than plaintiff testified to its existence, though not to its contents, and some of them most vaguely. Such proofs are not sufficient to comply with the rule that greater certainty is required in an action of specific performance than in an action at law and that the terms of the contract sought to be enforced must be clear and unambiguous. Lippman v. Featherston, 247 Mich. 153, 225 N.W. 489. This of necessity is especially so if an oral contract is sought to be enforced.

Defendants argued below and urge here that plaintiff is estopped by his inconsistent acts with relation to the property. Plaintiff says estoppel must be pleaded. He is correct in his conclusion (rule No. 23, § 3, Michigan Court Rules, and Stolte v. Krentel, 271 Mich. 98, 260 N.W. 127), but mistaken in his premise. Estoppel is pleaded in defendants' answer to paragraph X of the bill of complaint. It is there pointed out that plaintiff and his wife stated, in the affidavit hereinbefore mentioned, that neither written nor oral contracts existed, and that they were only occupying the premises by permission.

Plaintiff, Snider, when confronted with a copy of this affidavit, first objected to its consideration and then admitted its execution, but denied knowledge of its...