Ferguson v. Popp

Cooley, J. This is a foreclosure suit. The mortgage consists of two papers; a deed absolute in form from defendant to complainants,-and a contract on their part to reconvey to defendant on the payment by him of one hundred and fifty dollars with ten per centum interest on or before the twentieth day of June, 1870. The contract bore date September 20, 1869. Payment was not made when it fell due, but defendant claims to have made tender of full payment May 23, 1873, and to have deposited the amount in bank when complainants refused to [116] receive it. According to his evidence the whole amount remained in bank until the following September. Complainants denied the tender, and showed that on March 9, 1874, they tendered to the defendant a conveyance and demanded payment. The evidence satisfies us that defendant made the tender as he claims, and that complainants, while-they did not in terms refuse to receive it, were nevertheless unwilling to do so, preferring to keep their security. They therefore avoided taking the money, and must be held to have lost their lien. Van Husan v. Kanouse, 13 Mich., 303. Defendant, however, has not kept his tender good, and is liable at law upon his promise to pay, which is contained in the contract of sale, and -submits to. have such decree made in this case as shall be just. A just decree will be that- he pay the principal sum due with simple interest at the rate agreed upon to the time of payment, deducting from the time the period that intervened between the date of the tender and the date of their offer to convey. From the gross sum must be deducted defendant’s costs of both courts to be taxed, with interest at the same rate from this day. Defendant must pay the balance in - three months, and in default of payment sale of- the land may be made after the usual course of foreclosure proceedings. If defendant makes payment, complainants shall simultaneously convey the lands to him with covenant against their own acts. The other Justices concurred.