Zak v. Gray

Decision Date18 May 1949
Docket NumberNo. 61.,61.
Citation37 N.W.2d 550,324 Mich. 522
PartiesZAK v. GRAY et al.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Guy A. Miller, judge.

Bill in chancery by William Zak against Abraham Gray and others for specific performance of a parol agreement to convey land. From a decree in favor of plaintiff, defendants appeal.

Decree affirmed and remanded with directions.

Before the Entire Bench.

Betzoldt & Pfeifer, Detroit, Isaac M. Smullin, Detroit, of counsel, for defendants-appellants.

Stanley E. Beattie, Detroit, for plaintiff-appellee.

SHARPE, Chief Justice.

Plaintiff filed a bill in chancery in the circuit court of Wayne county against defendants to obtain specific performance of a parol agreement to convey land.

The trial court found the facts to be as follows: That in the summer of 1945 the land in question was vacant and was owned by a partnership composed of David Baum and defendant Abraham Gray which held title as tenants in partnership (partnership property); that in June 1945 plaintiff and defendant gray entered into an oral agreement whereby plaintiff agreed to purchase the premises for the sum of $500 and defendant agreed to sell said premises for said price; that prior to September 1, 1945, defendant Gray agreed that plaintiff could move his cobbler's shop on the premises in question; that early in the same month plaintiff moved his shop to the premises in question at a cost of approximately $1000 and did secure the shop to the land firmly with cement blocks and has conducted his business upon said land continuously from the fall of 1945 to the present time; that defendant Anna Gray, wife of Abraham Gray, while the land in suit was held as partnership property, had no right to dower; that on May 1, 1948, the interest of David Baum in said land was conveyed to defendant Gray; and that plaintiff continued negotiations for the deeding of the land in question to him until March 1947 by which time defendant Gray had advanced the price of the land to $3,000 which plaintiff refused to pay.

It also appears that on March 28, 1947, a complaint was made by Abraham Gray against William Zak, plaintiff herein, before a circuit court commissioner of Wayne county as a trespasser. The cause was contested and verdict of guilty was rendered in favor of plaintiff Gray. The cause was appealed to the circuit court of Wayne county which on June 9, 1947, entered judgment that plaintiff Gray have possession and a writ of restitution issue.

On June 23, 1947, Zak began the instant suit. The trial court held that plaintiff Zak was entitled to a warranty deed of the premises in question upon the payment of the sum of $500 plus interest and taxes and entered a decree accordingly.

Defendants appeal and urge that the court of law, having found that William Zak was a trespasser, its judgment is final and a court of chancery is without authority to make a finding that ‘the decision in the circuit court commissioner's court, appealed to the circuit court and affirmed there, is not res adjudicata of the issues herein;’ and that since the judgment of the court of law was legal and valid, a court of chancery was without authority to enjoin defendants from taking action under it.

It is well established that the jurisdiction of a circuit court commissioner in summary proceedings is strictly statutory and such court is without authority to try title to land. See Mortgage & Contract tract Co. v. Kupalian, 249 Mich. 577,299 N.W. 416. Nor does it have equitable jurisdiction. See German Bundesheim Society v. Schmidt, 242 Mich. 139, 218 N.W. 664. The only issue adjudicated before the circuit court commissioner was whether Zak was a trespasser. Mr. Zak's claim of right to specific performance asserted in the instant case was not and could not have been in issue in the proceedings before the circuit court commissioner.

We are not in accord with the claim of defendants that since the judgment of the circuit court at law legal and valid, a court of...

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15 cases
  • Wilkie v. Schwan's Sales Enterprises, Inc.
    • United States
    • U.S. District Court — Western District of Michigan
    • June 11, 1982
    ...same parties or their privies. Hewett Grocery Company v. Biddle Purchasing Company, 289 Mich. 225, 286 N.W. 221 (1939); Zak v. Gray, 324 Mich. 522, 37 N.W.2d 550 (1949); Hammitt v. Straley, 338 Mich. 587, 61 N.W.2d 641 (1954); Gomber v. Dutch Maid Dairy, 42 Mich.App. 505, 202 N.W.2d 566 (19......
  • Hammitt v. Straley
    • United States
    • Michigan Supreme Court
    • December 29, 1953
    ...530; Le Roy v. Collins, 165 Mich. 380, 130 N.W. 635; MacKenzie v. Union Guardian Trust Co., 262 Mich. 563, 247 N.W. 914.' Zak v. Gray, 324 Mich. 522, 37 N.W.2d 550, 551. DETHMERS, C. J., and BUTZEL, CARR, BUSHNELL, SHARPE, REID and ADAMS, JJ., concur. 1 At the trial plaintiff admitted to 13......
  • Eberspaecher N.A., Inc. v. Van-Rob, Inc.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • February 28, 2008
    ...that a preliminary injunction is proper in this case because it only gives it its rights under the contracts. See Zak v. Gray, 324 Mich. 522, 37 N.W.2d 550, 551 (1949) ("[s]pecific performance will be decreed where its effect will be to give to each party that for which he contracted and wi......
  • Vascular Mgmt. Servs. of Novi v. EMG Partners, LLC
    • United States
    • Court of Appeal of Michigan — District of US
    • March 9, 2023
    ... ... failed to present evidence of a contractual agreement between ... plaintiffs and the individual doctors who once worked for ... Envision Medical Services, plaintiffs were not entitled to ... that specific performance. See Zak v Gray , 324 Mich ... 522, 526; 37 N.W.2d 550 (1949) ("[S]pecific performance ... will be decreed where its effect will be to give to each ... party that for which he contracted and will work no wrong or ... injustice to either."). [ 1 ] ...          The ... ...
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