Upon receiving this letter, the complainants went to Alpena, and had an interview with the defendants, and offered to pay the amount due on the contract, principal and interest, and any amount they had in taxes, and on February 1, 1897, the offer was renewed by letter. It was as follows: "Assuming that you have the Mitchell title to the land, I contend that as to that land, between myself on the one part, representing the Old Second National Bank of Bay City, and the Alpena County Savings Bank, holding the Mitchell title, the legal relation is that of mortgagor and mortgagee. And that there may be no misunderstanding between us, I hereby offer to pay up in cash and in full the principal, interest, and costs past due and unpaid on the land contract dated December 8, 1891, between Austin W. Mitchell on the one part and A. Mosher & Son on the other part, for the sale of the land in question, including all amounts that you have paid as taxes on the land. I understand you to have declined such an offer from me verbally, but I make this offer in writing, so that, in a friendly, but plain, way, you may understand my position." This being refused, this suit was commenced on February 10th. Counsel for the defendant sums up his reasons why complainants should not be granted relief, as follows: "1. They refused to perform contract. "2. They neglected to give notice within a reasonable time of their readiness and willingness to perform. "3. Their rights in contract were duly forfeited by notice. "4. They are prohibited by contract from maintaining suit. "5. They denied liability under contract. "6. They refused to accept proper deed when tendered. "7. They have adequate remedy at law, and under special facts of this case is the only proper remedy. "8. They have trifled with this contract. "9. They have not been 'ready, desirous, prompt, and eager' to perform on their part. 10. They have no equities. In relation to these, we may say that the evidence con vinces us that the complainants did refuse to perform the contract according to its strict letter, and defaulted in payment when they declined to pay the amount due at the time the deed was tendered. Thereupon Mitchell served notice with a view to terminating the contract. Whether, under the terms of the contract, this notice was a sufficient one to support proceedings at law to enforce a forfeiture, we need not inquire, as no such proceedings were taken by Mitchell. On the contrary, he chose to treat the contract as continuing, and began proceedings with a view to enforcing its provisions, by collecting the contract price, through foreclosure of the vendor's lien. We must therefore conclude that any meditated forfeiture was waived, the effect of the notice was nullified, and the status of complainants thenceforth was that of vendees in default. That this was an intentional waiver is more plainly indicated by the deed to O'Brien, in which the existence of the complainants' contract rights was recognized, and subject to which Mitchell's interest was conveyed. No other steps have been taken to forfeit this contract, and, within a few days after receiving authentic information of the conveyance from Mitchell to the Alpena Savings Bank, the complainants made an offer of performance, which the defendant bank refused to accept. A court of law would hardly adjudge the contract forfeited under these circumstances, and we discover no inequity in granting relief to the complainants. The defendant bank has no greater rights than Mitchell, and suffers no injustice when it receives full payment. Our understanding is that the controversy is between the complainants and the Alpena Savings Bank, defendant Millen having disclaimed, and Mitchell having no interest in the matter. No decree is asked against him, and we do not discover that he has appeared in this court. As against the Alpena Savings Bank the decree will be reversed, and one entered in this court in favor of the complainants, in accordance with the prayer of their bill, with costs of both courts. The amount due upon the con 115 554 124 436 115 554 tract when this suit was commenced is adjudged to be as admitted upon the hearing by counsel for the respective parties, and will be definitely fixed by the decree. From that sum will be deducted the costs of both courts, which complainants will recover. As to the other defendants, neither party will recover costs. The other Justices concurred. CITY OF KALAMAZOO v. FRANCOISE. 139 1473 1. MUNICIPAL IMPROVEMENTS PAVING TAX FRONTAGE. ASSESSMENT BY It is competent for the legislature to authorize the cost of paving a street to be assessed upon the abutting property according to frontage. 2. SAME DESIGNATION OF ASSESSMENT DISTRICT. The designation of a taxing district by its street frontage, where that method of assessment is to be followed, is a sufficient compliance with a charter provision requiring the common council, in cases of special assessments, to “describe or designate the lots and premises or locality to be assessed." Error to Kalamazoo; Buck, J. Submitted January 7, 1898. Decided January 18, 1898. Assumpsit by the city of Kalamazoo against Cornelius Francoise to recover the amount of a paving tax. From a judgment for plaintiff on verdict directed by the court, defendant brings error. Affirmed. E. M. Irish, for appellant. E. S. Roos (A. J. Mills and Wm. G. Howard, of counsel), for appellee: In support of the validity of an assessment according to frontage, counsel cited: Cooley, Tax'n (2d Ed.), 644; Williams v. Mayor, etc., of Detroit, 2 Mich. 560; Motz v. City of Detroit, 18 Mich. 495; Sheley v. City of Detroit, 45 Mich. 431. HOOKER, J. The circuit judge directed a verdict for the plaintiff for the amount of a paving tax assessed against the defendant on the basis of his lot frontage upon the street paved. The defendant attacks the judgment upon the ground that the resolution of the council did not define a legal taxing district, in that it was designated by its frontage, and that it is inequitable to assess an expensive pavement on a small portion of the city, while most streets are not paved. The charter provides: "When any special assessment is to be made pro rata upon the lots and premises for any improvement, according to frontage or benefit, the city council shall, by resolution, direct the same to be made by the board of asessors, and shall state therein the amount to be assessed, and whether according to frontage or benefits, and describe or designate the lots and premises or locality to be assessed. The council may, in their discretion, in such resolution order a certain definite sum to be assessed upon each foot of frontage; and, in case they shall so order, the assessors shall assess such amount upon the frontage, instead of proceeding according to section 9 of this chapter." Act No. 318, Local Acts 1885, chap. 22, § 7. The resolution was as follows: "It is further resolved, that the sum of three dollars and twenty cents be assessed on each lineal foot frontage of all lands and premises abutting and fronting on either side of East Main street (a portion of which is also known on the records as Kalamazoo Avenue'), between the easterly rail of the main track of the Lake Shore & Michigan Southern Railroad, at the crossing of said main track with East Main street, and the westerly end of the most westerly bridge over the Kalamazoo river on said East Main street (a portion of which is also known on the records as 'Kalamazoo Avenue'), said sum being one-third of the estimated cost per lineal foot of said improvement." This was in accordance with the discretion confided to the council. The question of the right to pave certain streets, and assess according to street frontage, we must treat as settled by our own decisions. The authorities will be found cited in plaintiff's brief. The judgment is affirmed. The other Justices concurred. OWEN v. POTTER.1 1. GUARANTY-TRANSFER BY DELIVERY. A general guaranty of payment according to the tenor of the instrument, indorsed upon a bond payable to a specified person or bearer. if not strictly negotiable, is at least transferable by delivery, subject to equities. 2. SAME ENFORCEMENT OF SECURITY-RELEASE of GUARANTOR. 3. JURISDICTION-STATE AND FEDERAL COURTS-FORECLOSURE, 4. MORTGAGES-FORECLOSURE-Parties-GUARANTORS. It seems that a guarantor of payment of bonds secured by a mortgage is not a necessary party to a suit to foreclose the mortgage. 5. BANKRUPTCY-ASSIGNEE'S SALE-SECURED CREDITORS. Bondholders who purchase property securing their bonds at a sale by the assignee in bankruptcy of the obligor, and after 1 Rehearing denied July 18, 1898. |