Colby v. Tobba, Inc , 146 Mich. App. 592 ( 1985 )

146 Mich. App. 592 (1985) 381 N.W.2d 411

COLBY
v.
TOBBA, INC.

Docket No. 77180.

Michigan Court of Appeals.

Decided October 22, 1985.

Anagnost & Hall, P.C. (by Christ A. Anagnost), for plaintiff.

George Killeen, for defendant.

Before: HOOD, P.J., and D.E. HOLBROOK, JR., and D.P. KERWIN,^[*] JJ.

PER CURIAM.

This action arises from defendant's default on a land contract. Defendant is appealing as of right from the order of confirmation of the foreclosure sale of the property. On appeal defendant argues that plaintiffs' acceptance of payments by a court-appointed receiver constituted a waiver of the initial foreclosure and that it is entitled to credit for all payments made during the forefeiture period. We find defendant's arguments to be without merit and affirm the trial court.

Defendant argues that acceptance of payments from the court-appointed receiver waived the foreclosure and reinstated the land contract. Defendant's argument is based upon Krell v Cohen, 214 Mich 590; 183 NW 53 (1921), and Rubenstine v Powers, 215 Mich 434; 184 NW 589 (1921). However, those cases were decided under the law as it existed under the Judicature Act of 1915. That act was repealed, effective January 1, 1963, by the Revised Judicature Act, 1961 PA 236. Additionally we note that defendant as not the one who made the payments: rather, it was the court-appointed receiver. If defendant had wished to retain ownership, payment in full was required. MCL 600.3110; MSA 27A.3110. By making the payments, the court-appointed receiver was fulfilling his statutory duties. MCL 600.2926; MSA 27A.2926; MCL 600.2927; MSA 27A.2927. We decline defendant's invitation to create a rule which would require vendors to refuse all payments from a court-appointed receiver.

Defendant also contends that it is entitled to a return of approximately $57,000 for payments that it paid during the forfeiture period. After a thorough review of the record, we agree with the trial court that no surplus existed.

Accordingly, we affirm the trial court.

Affirmed. Costs to appellees.

NOTES

[*] Recorder's court judge, sitting on the Court of Appeals by assignment.