Walcrath Realty Co. v. Van Dyke

• Decision Date: 16 May 1933
• Docket Number: No. 70.,70.
• Citation: 248 N.W. 634,263 Mich. 316
• Parties: WALCRATH REALTY CO. v. VAN DYKE.
• Court: Michigan Supreme Court

263 Mich. 316

248 N.W. 634

WALCRATH REALTY CO.

v.VAN DYKE.

No. 70.

Supreme Court of Michigan.

May 16, 1933.

Appeal from Circuit Court, Kent County; William B. Brown, Judge.

Action by the Walcrath Realty Company against Margaret Van Dyke, in which defendant pleaded a cross-declaration. Plaintiff had judgment in the justice's court. From an adverse judgment in the circuit court, plaintiff appeals.

Reversed and remanded for entry of judgment for plaintiff.

Argued before the Entire Bench.

Frank Post, of Grand Rapids, for appellant.

Dilley & Dilley, of Grand Rapids, for appellee.

FEAD, Justice.

The action is at law to recover installments due on a land contract. Defendant pleaded rescission for fraud, with cross-declaration for return of moneys paid. Plaintiff had judgment in justice's court, but defendant recovered payments made on jury trial in circuit court. Plaintiff's motions for directed verdict and for judgment non obstante were denied.

Defendant claims that, at the time of purchase, plaintiff represented it had title under warranty deed, and she relied on the representations. About a year before suit, she heard plaintiff did not have title but was making payments for the land. So she quit paying on the contract. She made no claim of fraud to plaintiff, nor did she give it notice she claimed rescission before pleading in justice's court. She has never tendered back her contract nor reconveyance in writing.

No instrument of conveyance was offered to show title in plaintiff when the contract at bar was made. But there was undisputed oral testimony that plaintiff was always able to furnish title and warranty deed. While not the best evidence, defendant did not object to its admission on that ground nor take cross-appeal. After trial in justice's court, plaintiff obtained deed to itself and produced it in circuit court.

Defendant was not entitled to recover on the ground of rescission because she had made no tender to plaintiff of release in writing of her contract interest before suit. Lackovic v. Campbell, 225 Mich. 1, 195 N. W. 798;Lightner v. Karnatz, 258 Mich. 74, 241 N. W. 841.

Ordinarily, a vendee is not entitled to rescind for failure of title before the vendor is bound to convey. Silfver v. Daenzer, 167 Mich. 362, 133 N. W. 16;Detroit Fidelity & Surety Co. v. Bushman, 260 Mich. 115, 244 N. W. 251.

However, misrepresentation of title is fraud if it results in injury to the vendee. 39 Cyc. p. 1264; Allen v. Talbot, 170 Mich. 664, 137 N. W. 97;Steele v. Banninga, ...