Parrish v. Michigan Properties Corp.

J. H. Gums, J.

On June 4, 1956, the defendant Michigan Properties Corporation entered into a land contract for the purchase of approximately 86 acres of land from one Dr. Wilson. On November 2, 1956, plaintiffs Allen K. Parrish and Vivian K. Parrish entered into a land contract with the defendant corporation for the purchase of approximately one-half of the 86-aere tract.

On December 21, 1961, Prances H. Wark, assignee of the Dr. Wilson contract, served a notice of intention of forfeiture upon the defendant corporation contending it was in default on its land contract. The defendant corporation then advised plaintiffs of its receipt of such notice. No further payments were then made or accepted on the plaintiffs’ contract with the defendant.

On October 11, 1962, the Honorable Timothy C. Quinn, formerly of the Lapeer county circuit court, entered a judgment of restitution in favor of Mrs. Wark and against the defendant corporation. This judgment was appealed to the Michigan Supreme Court but dismissed on April 24, 1964, by order of the Supreme Court pursuant to a stipulation of the parties thereto.

On June 20, 1964, plaintiffs purchased the entire 86-acre tract from Mrs. Wark including the portion thereof they had contracted to purchase from the defendant corporation.

On July 28, 1964, plaintiffs brought the present action for breach of contract, alleging damages of $6,182.26 made up of $5,301.01 paid defendant on their contract and $881.25 for the cost of certain improvements they had made on the premises.

Plaintiffs joined William W. Schenck, Ben H. Schenck, Jr., and Lila C. Schenck, officers of the defendant corporation, as party defendants. The suit was dismissed as to these individual defendants on February 18, 1965.

On December 18, 1964, the circuit court granted plaintiffs’ motion for summary judgment and entered judgment against the defendant corporation for $6,182.26.

The defendant corporation appeals this judgment contending that plaintiffs purchased the tract while their contract with defendant was still in effect and therefore such purchase was, as a matter of law, for the account of defendant.

Defendant relies on CLS 1961, § 600.5673 (Stat Ann 1962 Rev § 27A.5673), to fortify its contention that the contract was still in effect at the time plaintiff made the purchase from Mrs. Wark. This statute states:

“No writ of restitution shall be issued * * * until the expiration of 90 days after the entry of judgment of restitution; and in case of an appeal within that time, no writ of restitution shall issue until such appeal is determined in the circuit court, or if further appeal is taken to the Supreme Court, within 90 days after such appeal is determined in the Supreme Court.”

Defendant argues that its appeal was “determined” in the Supreme Court on April 24, 1964, at the time the Supreme Court ordered the appeal dismissed pursuant to the stipulation of the parties. Further, defendant contends that by virtue of the statute, above quoted, it had an equity of redemption until July 23, 1964, and that since the plaintiffs purchased the tract on June 20,1964, the purchase inures to the benefit of defendant.

The record does not indicate that during this 90-day period the defendant made any tender of the amount found due and owing on its contract to either the plaintiffs or Mrs. Wark.

The statute, above quoted, provides that “no writ of restitution shall issue if the defendant shall * * * within 90 days * * * pay the amount so found due and the amount of costs awarded to the said plaintiff.” This the defendant failed to do and thereby waived its right of redemption. See Kaiser v. Weber (1942), 301 Mich 609.

And it appears that even if the defendant had made a proper tender prior to July 23, 1964, its rights in the tract had already been extinguished. The statute relied upon by defendant provides for a 90-day period within which redemption may he accomplished, beginning from a “determination” of the appeal by the Supreme Court.

An order dismissing the appeal pursuant to a stipulation entered into by the defendant is not a “determination” of the appeal within the meaning of the statute. Rather, it indicates an abandonment of the defendant’s interest in the property and its satisfaction with the adjudication of the learned circuit judge. The redemption period herein expired 90 days after the judgment of restitution was entered in the circuit court.

When the defendant’s rights in the property were extinguished, plaintiffs had the right to purchase the tract for their own benefit and protection.

Two further issues are presented in this appeal. Defendant contends that if the Court should find that plaintiffs are entitled to a judgment, it should not include the cost of the improvements made by the plaintiff. In this argument the defendant loses sight of the fact that when Mrs. Wark secured the judgment of restitution the improvements inured to her benefit. Plaintiffs in negotiating their purchase from Mrs. Wark had to pay for the then value of the land the same as any arm’s length purchaser.

Defendant’s final contention is that the plaintiffs, having had use of the land during the time they were making payments to the defendant on the land contract, should be required to pay a reasonable rent. This argument is untenable. Plaintiffs did not enter into a contract to rent the premises. They contracted to purchase the property and the defendant corporation having breached the contract cannot now complain. To award rental value under these circumstances would be tantamount to approving defendant corporation’s conduct and compensating it for its refusal to honor its contractual obligations.

Judgment affirmed. Costs to appellees.

Lesinski, C. J., and Fitzgerald, J., concurred.