Bennett v. Johnson , 256 Mich. 557 ( 1932 )

Defendant Arthur C. Johnson is the vendor, and plaintiffs Stephen S. Bennett and wife are the assignees of the vendee's interest, in an executory contract for sale of property in Vienna township, Genesee county. The contract required the vendees to insure the buildings against loss by fire, in company and amount to be approved by vendor, and with policies properly indorsed, to protect the interest of both parties to the contract. A policy of insurance taken out accordingly provided for payment of loss to plaintiffs and defendant as their respective interests should appear. After adjustment of a fire loss, a draft for $2,505.20 payable to plaintiffs and defendant was received from the insurer. Subsequent to the fire, plaintiffs sold the property on executory land contract to a third party who constructed a new building thereon at a cost in excess of the amount paid by the insurance company. Plaintiffs ask that the insurance money be turned over to them or that it be placed in the hands of a trustee to insure the payments on the contract. Defendant asks that the insurance be applied to the payment of the balance still due on the land contract, and the surplus be paid to plaintiffs. There is no material dispute on the facts.

On the hearing, it was shown that there was $2,278.76 still due oil the contract, and that part of it was past due. The circuit judge decreed that the amount due defendant be paid to him upon his furnishing a proper deed, with abstract showing good title, and that the balance be paid to plaintiffs.

As there are no other agreements in reference to the insurance moneys than those in the contract and insurance policy as hereinbefore set forth, the court was absolutely correct in its decree. The case is ruled by Kudner v. Miller,244 Mich. 49, and Shaw v. Cramton, ante, 293.

The decree is affirmed, with costs to defendant.

CLARK, C.J., and McDONALD, POTTER, SHARPE, NORTH, FEAD, and WIEST, JJ., concurred.