Fuoss v. Soellner

Michigan Supreme Court

Fuoss v. Soellner

255 N.W. 189, 267 Mich. 186, 1934 Mich. LEXIS 522

CourtMichigan Supreme Court

DecidedJune 4, 1934

DocketDocket No. 102, Calendar No. 37,657.

StatusPublished

This text of 255 N.W. 189 (Fuoss v. Soellner) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fuoss v. Soellner, 255 N.W. 189, 267 Mich. 186, 1934 Mich. LEXIS 522 (Mich. 1934).

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Opinion

Nelson Sharpe, C. J.

Plaintiffs filed separate bills of complaint to foreclose two land contracts. They wTere submitted at the same hearing. Plaintiffs insisted upon their right to decrees for any deficiencies arising upon the sales of the properties. No proofs were submitted as to the fair market value of the properties at that time. The trial court was of the opinion that the lots in question should not be sold for less than the amounts found to be due on the contracts, and so decreed. Plaintiffs have appealed.

Act No. 229, Pub. Acts 1933 (amending 3 Comp. Laws 1929, § 14366), had been passed by the legis *188 lature and approved by tbe governor at the time the decrees were entered. It provides, in part:

“In any forfeiture, foreclosure or specific performance case in chancery based upon a mortgage or land contract the court may fix and determine the minimum price at which the real property covered by such mortgage or land contract may be sold at the sale under such forfeiture, foreclosure or specific performance proceedings.”

In Michigan Trust Co. v. Dutmers, 265 Mich. 651, this court held that this statute did not justify the fixing of the amount due as the minimum bid; that it should be fixed “at a sum no higher than the fair market value of the security.” This case was decided after these decrees were entered. In the absence of proof of “fair market value,” the court can but assume that the properties will sell for at least the amount due and, if they do not, the plaintiffs are entitled to decrees for deficiencies.

Under the circumstances, it seems that the equitable thing to do is to set aside the decrees and remand the causes to the circuit court, with directions to entertain such proofs of fair market value as the parties may desire to submit and then enter decrees conformable to the holding in Michigan Trust Co. v. Dutmers, supra.

Decrees will be here entered so providing.

We think the court properly disposed of defendant’s claim of fraud and misrepresentation as set up in her cross-bill, and her cross-appeal is dismissed.

No costs will be allowed.

Potter, North, Fead, Wiest, Butzel, Bushnehl, and Edward M. Sharpe, JJ., concurred.

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Nelson Sharpe, C. J.

Plaintiffs filed separate bills of complaint to foreclose two land contracts. They wTere submitted at the same hearing. Plaintiffs insisted upon their right to decrees for any deficiencies arising upon the sales of the properties. No proofs were submitted as to the fair market value of the properties at that time. The trial court was of the opinion that the lots in question should not be sold for less than the amounts found to be due on the contracts, and so decreed. Plaintiffs have appealed.

Act No. 229, Pub. Acts 1933 (amending 3 Comp. Laws 1929, § 14366), had been passed by the legis *188 lature and approved by tbe governor at the time the decrees were entered. It provides, in part:

“In any forfeiture, foreclosure or specific performance case in chancery based upon a mortgage or land contract the court may fix and determine the minimum price at which the real property covered by such mortgage or land contract may be sold at the sale under such forfeiture, foreclosure or specific performance proceedings.”

In Michigan Trust Co. v. Dutmers, 265 Mich. 651, this court held that this statute did not justify the fixing of the amount due as the minimum bid; that it should be fixed “at a sum no higher than the fair market value of the security.” This case was decided after these decrees were entered. In the absence of proof of “fair market value,” the court can but assume that the properties will sell for at least the amount due and, if they do not, the plaintiffs are entitled to decrees for deficiencies.

Under the circumstances, it seems that the equitable thing to do is to set aside the decrees and remand the causes to the circuit court, with directions to entertain such proofs of fair market value as the parties may desire to submit and then enter decrees conformable to the holding in Michigan Trust Co. v. Dutmers, supra.

Decrees will be here entered so providing.

We think the court properly disposed of defendant’s claim of fraud and misrepresentation as set up in her cross-bill, and her cross-appeal is dismissed.

No costs will be allowed.

Potter, North, Fead, Wiest, Butzel, Bushnehl, and Edward M. Sharpe, JJ., concurred.

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255 N.W. 189, 267 Mich. 186, 1934 Mich. LEXIS 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuoss-v-soellner-mich-1934.

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