Taylor v. Parkview Mem'l Ass'n

• Decision Date: 08 April 1947
• Docket Number: No. 58.,58.
• Citation: 317 Mich. 164,26 N.W.2d 748
• Parties: TAYLOR v. PARKVIEW MEMORIAL ASS'N.
• Court: Michigan Supreme Court

317 Mich. 164

26 N.W.2d 748

TAYLOR

v.PARKVIEW MEMORIAL ASS'N.

No. 58.

Supreme Court of Michigan.

April 8, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Theodore J. Richter, Judge.

Suit by Henry C. Taylor against Parkview Memorial Association to foreclose a land contract. From a decree dismissing bill of complaint, the plaintiff appeals.

Decree affirmed.

REID and DETHMERS, JJ., dissenting.

Before the Entire Bench.

Anhut, McDowell, Montgomery & Patterson, of Detroit (Karl G. Eisele, of Detroit, of counsel), for appellant.

Reid & Young, of Detroit (Leslie P. Young, of Detroit, of counsel), for appellee.

BUSHNELL, Justice.

I cannot concur in my brother Reid's proposal that we base decision in this case on the proposition stated in Bowdish v. Page, 153 N.Y. 104, 47 N.E. 44, 46, that one occupying a position of trust should not be permitted to ‘impair or destroy the vested beneficial interests of his cestuis que trustent, upon the theory that, in his efforts in behalf of the trust estate, he had made an election of an inconsistent remedy.’ Furthermore, that case is distinguishable on its facts.

Consideration of the pleadings and the testimony in the matter before us requires concurrence with the trial judge's statement:

‘Testimony was offered by the attorney for the plaintiff as to the extent of his authority and of specific restrictions upon that authority. The alleged limitations upon his authority were not known to the defendant and were not made in its presence. This testimony was excluded upon the objections of the attorney for the defendant that it was hearsay, self-serving and an attempt on the part of the agent to prove by his own declarations the extent of his agency. A separate record of this testimony, however, was made on the request of the attorney for the plaintiff.

‘It is my opinion that the executor had the power to forfeit said contract as well as to foreclose it, and that the agent and attorney for the plaintiff, Mr. Anhut, had sufficient authority to give a valid notice of forfeiture of the contract and that having done so all rights and liabilities based upon said contract were immediately terminated and that the plaintiff at that time made his election of remedies and cannot thereafter change his position whether based upon error or otherwise and claim the right of a deficiency decree.

‘It is further my opinion that the testimony offered as to the limitation on the authority of the attorney for the plaintiff was not proper and not binding on the defendant. No testimony whatsoever was offered by the plaintiff himself at the hearing of the case.'

The controlling authorities are those from which Mr. Justice Reid has quoted, viz., Chicago Boulevard Land Co. v. Apartment Garages, 245 Mcih. 448, 222 N.W. 697, and Balesh v. Alcott, 257 Mich. 352, 241 N.W. 216. See, also, Stevens v. Most, 251 Mich. 23, 231 N.W. 47;Dedmon v. Sarkesion, 252 Mich. 613, 233 N.W. 434;Picard v. Shapero, 255 Mich. 699, 239 N.W. 264;Trombley v. Koestlin, 266 Mcih. 357, 253 N.W. 326;Malone v. Kugel, 281 Mich. 351, 275 N.W. 169;Weider v. Rogman, 285 Mich. 539, 281 N.W. 318.

The basic rule was early expressed in Goodspeed v. Dean, 12 Mich. 352, where the court said: ‘* * * plaintiff elected to treat the contract as void, and gave defendant a notice to quit. By this election we think he must be understood as having also relinquished his right to the amount then due upon the contract. He could not treat it as void in respect to the rights which it secured to the defendant, and valid in respect to those whic it secured to himself. Having declared it void as to the land it was void also as to the payments which it had bound the defendant to make for the land. There was nothing therefore upon which plaintiff could base a right of action for either the principal or the interest which had become due upon it.'

The decree dismissing plaintiff's bill of complaint should be affirmed, with costs to appellee.

CARR, C. J., and BUTZEL, SHARPE, BOYELS, and NORTH, JJ., concurred with BUSHNELL, J.

REID, Justice (dissenting).

Plaintiff executor appeals from an order of the circuit court dismissing the bill of complaint. Plaintiff's decedent at the time of her death was the surviving vendor in a land contract and was vested with the title to lands covered by the land contract as survivor tenant by the entireties. Defendant Parkview Memorial Association is vendee in that contract, which was dated May 24, 1933, and owns lands adjacent to those covered by the contract. No payments of installments have been made since July, 1936, and at the date of filing of the bill, February 11, 1942, plaintiff claims an unpaid balance of principal and interest in the sum of $39,853. John N. Anhut, attorney for the plaintiff executor, on January 12, 1942 wrote a letter to Mr. Heelon, president of defendant corporation, threatening legal proceedings unless something were done within the next week or ten days. On February 4, 1942, Mr. Anhut wrote Mr. Heelon another letter reciting the existence of the contract and the description of land conveyed, claiming the amount due to be $27,133.38, and demanding payment of that amount on or before February 9, 1942. The letter, marked Exhibit 3, also contained the following paragraph: ‘You are therefore notified that the undersigned as executor of said estate of the said Ida Condo, deceased, has elected to foreclose your rights under said contract; that unless you make payment of the amount now due and in default under the provisions of said contract, as per the following statement, it is my intention to file a bill in equity praying that your rights under said contract be foreclosed; that the court enter a money judgment for any deficiency that may be found due.'

Mr. Anhut, referring to the land in question, testified as follows: ‘I have been there several times * * * and have looked the cemetery over. We have been negotiating on this since 1937, back and forth, with the board of directors, and so I have been there.'

Mr. Anhut further testified, ‘Exhibit 4 is a forfeiture notice of the land contract, dated-apparently not dated, but that is my signature on it.'

Exhibit 4 was received in evidence without objection. It is addressed to the defendant and is as follows:

‘You, Parkview Memorial Association, a Michigan corporation, are hereby notified that a certain land contract bearing date of 24th day of May, 1933, by and between Albert Condo and Ida Condo, his wife, of the first part, and Parkview Memorial Association, a Michigan corporation of the second part, is in default by reason of the non-payment of the installments of principal and interest due thereunder, and you, Parkview Memorial Association, a Michigan corporation, are hereby further notified that the undersigned, as executor of the estate of Ida Condo, deceased, elects to declare and does hereby declare said contract forfeited, and you, Parkview Memorial Association, a Michigan corporation, are hereby notified to yield, surrender and deliver up possession of said premises in said land contract mentioned, and of which you are new in possession under and by virtue of the terms thereof. Said premises are described in said land contract as follows, to-wit:

‘All that territory, piece or parcel of land being situated in the township of Livonia, Wayne county, Michigan, and more particularly known and described as south one-half of the northwest one-quarter of the southwest one-quarter of section 21, and the northeast quarter of the southwest quarter of section 21, all in town 1 south, range 9 east, excepting the easterly 20 acres of the premises last described but not excepting a strip of land 100 feet wide off of the south end of said easterly 20 acres.

‘Signatures:

‘Harry C. Taylor, executor of the estate of Ida Condo, deceased, by John N. Anhut, his attorney.'

The envelope in which Exhibit 4 was enclosed is stamped by the post office registered division, February 10, 1942.

Mr. Anhut further testified, ‘I admit it, it is my signature on Exhibit 4. I don't know how I signed it, but it was put on my desk. I never authorized its being sent to the defendant corporation.'

In Balesh v. Alcott, 257 Mich. 352, 241 N.W. 216, after referring to the provisions of chapter 30, Act No. 314, Pub.Acts 1915, 3 Comp.Laws 1929, § 14975, Stat.Ann. § 27.1986, we said, at page 354 of 257 Mich., at page 217 of 241 N.W.: ‘Upon default made by vendee in the terms of the land contract, three actions were open to the vendor: A suit in equity to foreclose the contract, an action of ejectment, proceedings under the statute last above cited. Lambton Loan & Investment Co. v. Adams, 132 Mich....