Bouchard v. Edwards

251 N.W. 322, 265 Mich. 266, 1933 Mich. LEXIS 665

• Court: Michigan Supreme Court
• Decided: December 5, 1933
• Docket: Docket No. 21, Calendar No. 37,321.
• Status: Published

Opinion

Potter, J.

Plaintiffs, successors in title and interest to vendors in a land contract, seek foreclosure in equity and decree for deficiency against appellant, assignee of vendees. Appeal is taken from decree for plaintiffs. No notice of forfeiture was served. Notice to quit and forfeiture for default of vendees was waived. Appellant claims the bill alleges all vendee’s rights under the contract have ceased and terminated, and the proof shows the contract was terminated and foreclosure instituted; that thereby the mutual rights and liabilities under the contract were terminated; that defendants could not enforce the contract, and hence plaintiffs may not do so; that plaintiffs looked to and collected from appellant’s assignees for a long period of time; that a novation resulted and appellant is released from liability and no decree may be taken without tender of a deed by plaintiffs.

The allegations of the bill and testimony that defendant’s rights were terminated must be considered in connection with the acts of- plaintiffs which show that upon default by vendees and their assign in payment, they elected to cease soliciting further payments, to foreclose the contract and seek decree for deficiency. This they had a right to do. Appellant, an assignee of vendees, assumed and agreed to pay the contract. Under the rule of Barnard v. Huff, 252 Mich. 258 (77 A. L. R. 259); Hamburger v. Russell, 255 Mich. 696, and Johnson v. Bangs-McCutcheon, Inc., 260 Mich. 120, plaintiff was entitled to decree for deficiency against appellant. Suretyship is not involved. Tender of a deed was not a necessary prerequisite of foreclosure.

Decree affirmed, with costs.

McDonald, C. J., and Weadock, Sharpe, North, Dead, Wiest, and Butzel, JJ., concurred.