Lambton Loan & Investment Co. v. Adams

Grant, J. (after stating the facts). This is a proceeding brought under the statute providing summary proceedings to recover the possession of land. Sections 111G4-11181, 3 Comp. Laws. Section 111G4 authorizes this proceeding when one shall “hold over any lands or tenements after the time for 'which they are demised or let to him, * * * or contrary to the conditions or covenants of any executory contract for the purchase of lands, * * * or where rents shall have become due on any shell lease or agreement. ” Section 11168 provides that if it is claimed upon the trial before the commissioner, or upon appeal to the circuit court, that the complainant is entitled to possession in consequence of the nonpayment of any sum of money due as a part or portion of the purchase money of premises, the officer or the court or jury shall, in addition to the usual judgment for the complainant, ascertain and determine the amount due the complainant, and that such amount shall be stated in the judgment. Section 11177 provides [353] that “no writ of restitution shall issue if the defendant shall, within five days after final judgment, pay the amount so found due, and double the amount of costs awarded to the said complainant.” Three actions were open to the complainant upon the failure of the vendee to make payments, and the service of notice upon him declaring the contract forfeited: (1) A suit in equity to foreclose the contract; (2) an action of ejectment; (3) proceedings under the statute. The first two actions exist independent of the statute. The third is purely statutory. The only violation of the vendee’s contract in this case was his failure to make payments. This brought him directly within the terms of the statute. He who seeks possession for violation of a lease or contract of sale for nonpayment of money due thereunder takes the remedy subject to the conditions imposed by the statute. The statute was designed to provide a speedy and summary remedy for obtaining possession of lands held over contrary to these agreements, and in doing so it also sought to give the lessee or vendee another opportunity to retain the benefit of his contract by payments within five days, where the failure to pay was his sole default. The judgment is reversed, and the writ of mandamus issued by the court below quashed. The other Justices concurred.