Gault v. Van Zile

Cooley, C. J. We think the circuit judge was in error in excluding the evidence which was offered to show that the deed of the New York lands was a warranty deed, as that term is understood under the laws of New York. On this point we need only refer to the cases of Dwight v. Cutler, 3 Mich., 560, and Allen v. Hazen, 26 Mich., 146, which recognize the right of the purchaser of lands whose contract does not specifically define the sort of deed he shall be entitled to, to demand a deed with customary covenants. But what was customary would be determined by the lex rei sitce. We also think the plaintiff should have been allowed to show that no objections were made to the deed and bond [24] when they were tendered. A failure to object would not bo conclusive on the question of waiver of objections, but it would be an important circumstance to submit to the jury, and would boar more or less strongly on the question of the sufficiency of the penalty of the bond to protect Van Zile against possible loss in case of breach. We cannot determine from this record whether the penalty was or ivas not sufficient, because we are not informed what amount was owing on the mortgage. The condition of the bond was not what the agreement called for. By the agreement Gault was to procure an extension of the time of payment on the mortgage, “and should he not succeed in making said arrangement for the extension of the time for paying the same, to protect said party of the first part against any loss or damage arising from the same, for the said term of five years, giving bond for the same.” The bond actually tendered only undertook to “protect and keep harmless the said John M. Van Zile from any expense he may be put to from any proceedings made to foreclose” the mortgage: an undertaking much less broad than that stipulated for. And while Van Zile might undoubtedly consent to receive such a bond, and waive his right to a more exact compliance with the agreement, the evidence to show such consent and waiver ought to be very full and distinct before it should be received as satisfactory. Upon the question of the proof of the deed as it arises on this record we shall make no remark, because the judge based his ruling upon a ground that rendered such proof unimportant. But it is proper in view of another trial to say that as the deed was a deed of New York lands, it would not prove itself under our statutes. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.