Opinion
Docket No. 85, Calendar No. 36,790.
Submitted October 12, 1932.
Decided December 6, 1932.
Appeal from Livingston; Collins (Joseph H.), J. Submitted October 12, 1932. (Docket No. 85, Calendar No. 36,790.) Decided December 6, 1932.
Bill by Helen Himebaugh against Merritt Chalker and others to rescind a land contract and for other relief. Decree for plaintiff. Defendants appeal. Affirmed.
Floyd W. Cone, for plaintiff.
Don W. Van Winkle, for defendants.
Plaintiff filed a bill for rescission of a land contract, accounting, and a lien upon the premises in dispute for the amount found to be due. From a decree for plaintiff, defendants appeal. April 19, 1924, plaintiff and her husband, Arthur J. Himebaugh, now deceased, together with Floyd Finch and Florence Finch, purchased by land contract from Sarah Chalker, now deceased, the land mentioned and described in the bill of complaint. Subsequently the Finches assigned their interest to plaintiff. Thereafter a new contract was entered into between Sarah J. Chalker and plaintiffs for the purchase of the same land, credit being given for money paid on the former contract. June 15, 1926, plaintiff and her husband, Arthur J. Himebaugh, purchased of Sarah J. Chalker, Merritt Chalker, and Maryett Chalker a parcel of land lying between their former purchase and Patterson Lake. Payments were made on this contract by vendees. Sarah Chalker is dead. Defendants Merritt Chalker and Henry Collins were her devisees. Her estate was probated. Merritt Chalker obtained a judgment before a circuit court commissioner for restitution of the premises mentioned and described in the contracts. This judgment was void because service of process was not had upon plaintiff. After securing this judgment before a circuit court commissioner, the property in question was sold by the Chalker estate and Henry Collins and Eern Collins, his wife, to Leonard Arthur King. King had notice of the claim of plaintiff before transfer to him. A tender by plaintiff to defendants of the amount due upon the contracts and demand for a deed was made. The property having been sold and transferred by defendants, it was not possible for them to give a deed as requested. The action of Merritt Chalker and Henry Collins in selling the property in question amounted to a rescission of the contract.
"If plaintiffs were entitled to recover, the rule is that they were entitled to recover the payments made, and the reasonable value of the improvements made in good faith, less the value of the use of the premises." Bartlett v. Smith, 146 Mich. 188 (117 Am. St. Rep. 625).
It was not necessary for plaintiff to have made a tender of the amount due upon the contracts and a demand for a deed before filing a bill to obtain a rescission of the contracts. Jandorf v. Patterson, 90 Mich. 40; Maurer v. Iden, 242 Mich. 568; Brow v. Gibraltar Land Co., 249 Mich. 662; Lightner v. Karnatz, 258 Mich. 74. Defendants' principal contention is that the court was in error in holding plaintiff was entitled to rescind, and in the determination of the amount due plaintiff. Under the facts, where defendants had recovered judgment before the circuit court commissioner against plaintiff, we do not think knowledge of defendants King of plaintiff's possession bars her right to recover. The amount found to be due by the trial court to plaintiff was within the fair range of the testimony.
Decree affirmed, with costs.
CLARK, C.J., and McDONALD, SHARPE, NORTH, FEAD, and BUTZEL, JJ., concurred with POTTER, J. WIEST, J., concurred in the result.