Sharrer v. MacDonald

246 N.W. 220, 261 Mich. 544, 1933 Mich. LEXIS 803

• Court: Michigan Supreme Court
• Decided: January 4, 1933
• Docket: Docket No. 181, Calendar No. 36,750.
• Status: Published

Opinion

Fead, J.

Plaintiffs filed bill to reform and foreclose a land contract. Defendants had decree dismissing the bill. Defendant MacDonald and wife were contract vendees. Wunsch is their assignee, and Garrity is interested only as Wunsch’s tenant. MacDonald was served by publication and did not appear. Mrs. MacDonald is dead. Wunsch made defense in circuit court, but filed no brief on appeal.

A preliminary sales agreement was made between plaintiffs and MacDonald and wife. It provided for down payment, to be made within 30 days, of $300 cash, warranty deed of a lot at $1,800, and assignment of mortgage for $2,400 executed by John Atkinson to the MacDonalds. The formal contract recited receipt of $4,200 paid by the purchaser prior to delivery of contract. That sum comprised the prices at which the lot and mortgage were taken.

MacDonald obtained the mortgage from Atkinson by fraud. The fraud was not only shown at the hearing of this suit and found by the court, but Atkinson, on the ground of such fraud, successfully defended an action by plaintiffs on the mortgage note. On the claim of mutual mistake, plaintiffs ask reformation of the contract to show the items receipted for as down payment.

There was no evidence that the parties, or either of them, intended or expected the formal contract to show the items of the down payment nor that the contract, in receipting for the deed and mortgage as cash, did not express their agreement, and plaintiffs are not entitled to reformation.

By the assignment, Wunsch assumed and agreed to pay the balance of the contract price and is liable to personal deficiency decree. Barnard v. Huff, 252 Mich. 258 (77 A. L. R. 259).

The decree is reversed, and one may be entered for plaintiffs for foreclosure of the contract with deficiency decree against Wunsch, and costs of both courts to plaintiffs.

McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred.