Tilchin v. Boucher

328 Mich. 355 (1950)

43 N.W.2d 885

TILCHIN v. BOUCHER.

Docket No. 1, Calendar No. 44,548.

Supreme Court of Michigan.

Decided September 11, 1950.

Rehearing denied December 5, 1950.

Seymour Tilchin, in pro. per.

Guy C. Conkle, Jr., for defendants Boucher and D'Ooge.

Simeon Cugell, for defendants Cugell and Philipp.

*357 BUSHNELL, J.

Benjamin L. D'Ooge and Jane P. D'Ooge, his wife, sold to George R. Swain and Louise Swain, his wife, by land contract of March 2, 1926, certain lake-shore frontage in section 3, township 33 north, range 7 west, Charlevoix county, Michigan. The contract contained a forfeiture clause which provided for the retention by the vendors of any amounts paid and the buildings erected thereon if the vendees defaulted. This contract was not recorded.

On the death of the vendors, their interest in the premises passed to their children, defendants Ida D'Ooge Boucher and Leonard D'Ooge.

Plaintiff Seymour Tilchin, a Detroit attorney, leased a part of the premises from the Swains on April 26, 1940. Tilchin acted as agent for Kamp Kairphree, Inc. The lease was for 5 years and 5 months and contained an option for the purchase of Swain's interest in the land contract. Swain also agreed in the lease to assign his interest in the land contract to the corporation if he defaulted in his contract payments. The lease further provided that any buildings erected by the corporation should be its property and removable at the expiration of the lease. Plaintiff had notice of the terms of Swain's land contract and ascertained that he was not then in default. This lease was not recorded.

The corporation operated a summer camp on the property during 1940, but then dissolved and assigned all its interest to plaintiff Tilchin on December 26, 1940.

In the spring of 1941, Tilchin built 3 cabins on the property. He operated the camp only during the summer season of 1941 for a period of 8 weeks and not thereafter.

Swain defaulted in his land contract payments and summary proceedings were had before a circuit court commissioner. Tilchin was not made a party *358 to these proceedings, from which no appeal was taken. A writ of restitution was issued on September 28, 1943, and defendants Ida D'Ooge Boucher and Leonard D'Ooge were placed in peaceful possession. Thereafter in the fall of 1943, plaintiff visited the property and found the gates padlocked with other locks than his. He admitted hearing about the forfeiture by the end of 1943 or the early part of 1944. During the spring of 1944, he made inquiries about the foreclosure. On July 31, 1944, he wrote asking an attorney at Charlevoix to investigate the matter. He also testified that on August 2, 1944, he wrote to defendant Ida D'Ooge Boucher demanding the cabins, but that she replied denying his right to remove them.

Defendants Ida D'Ooge Boucher and Leonard D'Ooge conveyed the property that included the 3 Tilchin cabins to defendants Edythe Cugell and Frances Philipp on August 24, 1945. This deed was recorded.

Plaintiff commenced an action at law on July 29, 1946, claiming a conversion of the 3 cabins by defendants from and after August 2, 1944.

The trial judge held that there had been no conversion and that defendants Edythe Cugell and Frances Philipp were bona fide purchasers for value.

Vendee Swain's land contract interest was terminated by the judgment in the summary proceedings. Rosenthal v. American Construction & Realty Co., 262 Mich 91. Plaintiff was not a necessary party, and his lease interest was also terminated by the summary proceedings. Dolese v. Bellows-Claude Neon Co., 261 Mich 57.

The cabins, both by agreement and as trade fixtures, were removable by plaintiff-lessee as against the vendee-lessor Swain. Hayward v. School District No. 9 of Hope Township, 139 Mich 539, 542. The prior security interest of the vendor defendants *359 was not acquired in reliance on the Tilchin cabins. As against these defendants, therefore, plaintiff also had a right to remove his cabins within a reasonable time after the expiration of the lease if accomplished without injury to the freehold. See Robertson v. Corsett, 39 Mich 777; Harris v. Hackley, 127 Mich 46, 50; First Commercial & Savings Bank of Wyandotte v. Trenton Milling Co., 144 Mich 188; and Woodliff v. Citizens Building & Realty Co., 240 Mich 413.

Plaintiff had some knowledge of the land contract forfeiture by early 1944, and investigated at the property in the spring of that year. However, in such a northern locality as this, the summer season is the most feasible time to act and this, plaintiff attempted. Defendants knew the purpose of the erection of the cabins and were not prejudiced by their remaining on the property during that time. When these defendant owners sold the property to defendants Edythe Cugell and Frances Philipp, the price included payment for the cabins. Considering the nature of the lease termination, the seasonal problem, and the distance from plaintiff's home in Detroit, he acted within a reasonable time by making demand for removal on August 2, 1944.

Defendant Edythe Cugell and Frances Philipp took as bona fide purchasers, and plaintiff cannot recover against them.

The judgment entered in favor of defendants Ida D'Ooge Boucher and Leonard D'Ooge is vacated. The cause is remanded to ascertain the amount of plaintiff's damages and for the entry of a judgment therefor. Costs to appellant.

BOYLES, C.J., and REID, NORTH, DETHMERS, BUTZEL, CARR, and SHARPE, JJ., concurred.