Cooper v. Jefferson Investment Co. , 70 Mich. App. 597 ( 1976 )

70 Mich. App. 597 (1976) 246 N.W.2d 311

COOPER
v.
JEFFERSON INVESTMENT COMPANY

Docket No. 25897.

Michigan Court of Appeals.

Decided August 5, 1976.

John H. Yoe, for plaintiffs.

Joseph E. Mihelich and Lee D. Tout, for defendant Frank C. Piku.

Before: J.H. GILLIS, P.J., and T.M. BURNS and W. VAN VALKENBURG,^[*] JJ.

PER CURIAM.

Plaintiffs sold land to the defendant partnership on land contract. The land contract contained an acceleration clause allowing plaintiffs to foreclose if any payment was 45 days overdue. The December 1st and January 1st payments were not made until January 20th. The February and March payments were timely. The April 1st and May 1st payments were not made on time, so plaintiffs brought this action to foreclose.

On June 9, Piku was served with the complaint. He thereafter filed a motion for summary judgment, claiming that he had tendered payment for the April, May and June installments on June 6th. Plaintiffs claimed that the tender was too late, and they would not accept it. The trial court granted summary judgment for defendants, finding foreclosure to be too harsh a remedy since payment was tendered and defendants had substantial equity in the land.

The trial court erred as a matter of law in not granting foreclosure. A trial court should not, in exercising its discretion as a court of equity, dismiss a foreclosure action brought under an acceleration clause for overdue payment where the breach of the contract is not disputed. Russell v Glantz, 57 Mich. App. 44; 225 NW2d 191 (1974), Dumas v Helm, 15 Mich. App. 148; 166 NW2d 306 (1968).

The April 1st payment was more than 45 days overdue. The fact that payment was tendered prior to notice of intent to foreclose is no defense. An acceleration clause election requires no preliminary notice and can be instituted by simply foreclosing for the full amount. Hawes v Detroit Fire & Marine Insurance Co, 109 Mich. 324; 67 N.W. 329 (1896).

Reversed and remanded for entry of judgment of foreclosure. Costs to plaintiffs.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.