Weider v. Rogman

• Decision Date: 03 October 1938
• Docket Number: No. 97.,97.
• Parties: WEIDER et ux. v. ROGMAN et ux.
• Court: Michigan Supreme Court

285 Mich. 539

281 N.W. 318

WEIDER et ux.

v.ROGMAN et ux.

No. 97.

Supreme Court of Michigan.

Oct. 3, 1938.

Suit by Ben Weider and wife against Bernard T. Rogman and wife to rescind a land contract. Decree for defendants, and plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Wayne County, in Chancery; Theodore J. Richter, Judge.

Argued before the Entire Bench.

Leemon, Starr & Fealk, of Detroit (Isadore Starr, of Detroit, of counsel) for appellants.

Peck & Kramer, of Detroit, for appellees.

BUSHNELL, Justice.

Plaintiffs are the vendees under a land contract for the purchase of certain real property, located on Leland street, between St. Antoine and Hastings streets, in the City of Detroit. Defendants are the purchasers of the vendors' interest in the contract.

The contract was entered into in 1922, the consideration being $6,000, of which $1,000 was paid at that time, and the balance was to be paid at the rate of $50 a month on principal and interest. These payments were made until November, 1932, when plaintiffs defaulted and defendants thereafter obtained a judgment for possession of the premises in proceedings had before a circuit court commissioner. Shortly before the expiration of the 90 days from the judgment, when a writ of restitution might have issued (see 3 C.L. 1929, § 14988, as amended by Act No. 122 of the Public Acts of 1933, Mich.Stat.Ann. § 27.1999), plaintiffs filed a bill of complaint seeking relief under the provisions of the so-called Land Contract Moratorium Act (see Act No. 122, Pub.Acts 1933, Mason's Supp. § 14988-1 et seq., Mich.Stat.Ann. § 27.2000, et seq.). An order was entered on August 28, 1934 by the chancery court, upon consent of counsel, giving possession of the premises to defendants herein and authorizing them to ‘collect the rents and proceeds therefrom of any part of the same that may be occupied.’ The court ordered the proceeds to be applied ‘first upon insurance, taxes, and interest due upon said Land Contract, and then upon the principal due thereon.’ Plaintiffs were given the right to redeem from the forfeiture of the contract ‘at any time on or before March 1, 1935, upon paying the full amount due thereon,’ less any credits arising out of net rental collections.

On September 27, 1935, the period of redemption was extended by an order of the Circuit Court nunc pro tunc as of February 28, 1935. No question is raised as to the validity of this order and we must, therefore, consider that the period of redemption has continued uninterruptedly from February 28, 1935.

The building upon the property was old and in a dilapidated condition. On April 9, 1935, defendants were ordered by the Department of Buildings and Safety Engineering of the City of Detroit to ‘dismantle and remove the 2-story frame dwelling or place in a safe condition and securely...