Jenks v. Jenks

247 N.W.2d 588, 70 Mich. App. 688, 1976 Mich. App. LEXIS 903

Opinions

Quinn, P. J.

Defendants appeal from a judgment that required them to convey certain real estate to plaintiff on the basis of an oral agreement to do so. The only argument made on appeal is that the oral agreement was unenforceable because it was void under the statute of frauds.

The trial court found sufficient part performance to bring the oral contract within MCLA 566.110; MSA 26.910. This finding is supported by the record. Had we sat as the trial court, we would have reached the same result.

We find that the judgment below does not adequately protect the interests of these defendants. The final two paragraphs of that judgment are stricken and the judgment is amended as follows:

"It is ORDERED and ADJUDGED that in the event plaintiff pays defendants $1,100 plus interest at 6% from October 1, 1973 and satisfies and discharges that mortgage to Community National Bank recorded in liber 6095, page 523, Oakland County Register of Deeds, both obligations to be satisfied on or before October 1, 1976, judgment of specific performance of the oral agreement and requiring defendants to execute and deliver to plaintiff a good and sufficient deed of conveyance of said land may enter, and if plaintiff performs as specified and defendants neglect or refuse to execute and deliver said deed, plaintiff may record the judgment with like effect.

"It is further ORDERED that on the failure of plaintiff to perform as specified, her complaint is dismissed.”

As amended, the judgment below is affirmed but without costs, neither party having prevailed in full.

D. E. Holbrook, J., concurred.