Welch v. Richards

• Decision Date: 14 October 1879
• Citation: 2 N.W. 920,41 Mich. 593
• Court: Michigan Supreme Court
• Parties: GEORGE W. WELCH v. RICHARD RICHARDS.

2 N.W. 920

41 Mich. 593

GEORGE W. WELCH v. RICHARD RICHARDS.

Supreme Court of Michigan

October 14, 1879

A vendee of lands in default under a contract of sale, and having no valuable interest in the lands, upon which a lien has been acquired, may, if acting in good faith, surrender the possession and all right to the crops growing on the land, and cut out all inchoate rights of his creditors therein.

James Gould, for plaintiff in error.

J.D Conely, for defendant in error.

MARSTON J

We are of opinion that the plaintiff in error had no cause to complain of the manner in which this case was by the court submitted to the jury. Where a vendee in possession of land makes default, the vendor may at once commence proceedings to have the contract declared forfeited.

The vendee may, without compelling his vendor to resort to legal measures, surrender up his contract for cancellation and yield possession of the premises. In other words, the parties may by agreement accomplish that which the law would, if resorted to. The vendor could in this case have recovered possession of the land and the crops levied on by a resort to legal proceedings, before the crops would have matured or been sold under an execution. In such a case it should be made to appear that the surrender of possession and of the contract for cancellation was made in good faith because of an inability to pay, and to avoid useless expense of litigation, and not to cut off inchoate rights which third parties may have acquired in the lands or crops growing thereon. Where under the surrender the vendor acquires no right or advantage as against such third party, which he could not have acquired by judicial proceedings, such third party is not injured.

The charge of the court was very carefully given, and guarded to protect the rights of all under it. The jury must have found that possession was taken in fact under and because of the forfeiture, and not under an independent agreement to surrender.

This case is distinguishable from Nye v. Patterson, 35 Mich. 414. In that case it appeared that the landlord entered into possession, not because of a forfeiture, but under an independent agreement. The charge of the court in this case recognized and followed the rule laid down in Nye v Patterson. There may be cases where a party in possession under a lease or land contract has made default in payment of a stipulated sum, and yet he may have a...