Horan v. Barbour

151 N.W.2d 220, 7 Mich. App. 110, 1967 Mich. App. LEXIS 546

Opinion

Burns, J.

On August 14, 1962, plaintiff and defendants entered into a lease which contained an option to purchase property located at 39 N. Deeplands street, Crosse Pointe Shores, from the defendants. The instrument included the following provision:

“If the tenant shall exercise said option to pur-r chase * * * the landlord shall, within 10 days, furnish tenant with good and sufficient evidence of title.” (Emphasis supplied.)

Plaintiff filed suit against the defendants and alleged in his complaint that although he had exercised the option to purchase said land and the premises had been conveyed to him by the defendants, they had failed to furnish him with good and sufficient evidence of title, Plaintiff had acquired good and sufficient evidence of title by purchasing title insurance for the sum of $349. The action was brought to recover this amount from the defendants.

The defendants answered the plaintiff by stating:

“Defendants admit that the premises commonly known as 39 N. Deeplands were conveyed by defendants to plaintiff but deny that defendants failed to give good and sufficient title to plaintiff.”

■ Plaintiff moved for summary judgment “for the reasons that the defendants have failed to respond to paragraph 5 of the complaint and have failed to state a valid defense to the claims asserted against them.”

The motion for summary judgment was denied without prejudice by the presiding judge, and the case was referred to a trial judge. On the day when this controversy was scheduled for trial, the judge, by his own motion, dismissed the case on the ground that the common pleas court of Detroit did. not have jurisdiction because the case involved “title to real estate.” CDS 1961, § 600.6615 (Stat Ann 1962 Rev § 27A.6615)

* states:

“No justice of the peace may have cognizance of the following actions: * * *

“(2) Where the title to real estate shall come in question.”

In Ostrom v. Potter (1888), 71 Mich 44, at page 49, the Court stated:

-“Title, or claim of title, is not in question unless [it is in issue in the case; and it is not in issue ¡¿unless the title, ,or claim of title, is essential to the plaintiff’s right of recovery, or to defeat a recovery in the action.”

In the present case title is not in question, nor is it an issue in the case. There is a distinction between the defendants furnishing good and sufficient evidence of title and furnishing good and sufficient title. In Michigan the 2 most common methods of furnishing evidence of title are by an abstract of title or by title insurance. The plaintiff alleged the defendants breached their contract by their failure to furnish such evidence to him and that he was damaged in the amount of $349.

Reversed and remanded for trial on its merits. Costs to appellant.

Levin, P. J., and McGregor, J., concurred.

This.j?ee,tion also applies .to ,the conipion pleas court of Detroit.