
    James Curran v. Samuel Rogers.
    
      Action on contract: General issue: Execution of contract: Admission. In an action upon a contract, which is set out verbatim in the declaration, and alleged to have been jointly executed, the plea of the general issue, without any affidavit, admits the execution of the contract in manner and form as it is alleged.
    
    
      Land contract: Option: Election: Taking possession and asserting ownership. Under a contract for the sale of the timber on a parcel of land, separately, at a specified price, and for the refusal of the land for a given, time at a given price, the talcing possession and the exerci.se and assertion of ownership, beyond what relates to the timber, is held to operate as an irrevocable election to retain the land.
    
    
      Zand contracts: Clear and maa'ketable title: Mortgages paid but not discharged. The existence of mortgages which have been paid hut not discharged of record, will not excuse a vendee in a land contract from accepting a proper deed, on the ground that the title is not such a clear and marketable one as the law requires.
    
      Land contracts: Option: Allowance of time: Title: Inquiry. The query is suggested, whether the allowance of time in the contract, for election as to whether the vendee would purchase the land, should not he regarded as designed, as it is certainly adapted, to enable the vendee to inquire concerning such matters relating to the title as were reasonably open to inquiry.
    
      ^Marketable title: Litigation between thi/rdparties: Assertions. A litigation pending between third parties, in which the lands in question are involved, but which does not attempt to attack the title of the vendor, affords no excuse to the vendee for declining the deed. Titles cannot he encumbered by assertions of third persons, and a litigation purely between, third persons is no more than any other assertion.
    
      Land contracts: Vendee in possession: Tender of deed: Reasonable time. Where the vendee retains general control of the land, and makes no attempt to rescind the contract, delay beyond a reasonable time in tendering a conveyance is of no consequence, since time ■under such circumstances does not become essential.
    
      (La/nd contracts: Breach by vendee: Measure of damages: Purchase price. In an action by a vendor for failure of his vendee to perform a land contract, the measure of damages, where the vendee has been put in possession and the vendor has tendered a proper deed, is the purchase price provided by the contract to he paid.
    
    
      Heard October 24.
    
    
      Decided October 25.
    
    Error to Van Burén Circuit.
    
      B. IP. BTecJsert and Bicharás <& Mills, for plaintiff in error,
    argued that the contract declared on, being executed by Tripp in the firm name and without authority in writing from Cur-ran, was void under the statute of frauds and not binding either on the firm or on Curran: Comp. B. 1871, § Jfi91¡.; Browne on Frauds, §§ 263, 266,271; 5 Hill, 107; 10 Paige, 86; 11 lb., 410; and that the statute embraces contracts for the purchase as well as for the sale of lands, and applies to the vendee as well as the vendor; that .there being no ratification by Curran in writing of Tripp’s acts, a part performance of the contract would not take the ease out of the statute: 1 Pick., 381; 2 Ib., 134; 24 Mich., 329; that the tender of a conveyance within a reasonable time was necessary, and Curran was entitled to a good, clear, unencumbered, marketable title: 8 Mich., 166; 21 Mich., 361; 51 Penn. St., 269; and that the vendor could not maintain a suit until such a title had been tendered; the covenants of the parties being mutual and dependent, neither could put the other in default except by tendering performance on his own part, unless such tender was waived: 2 Mete., 502; 41 Cal., 422; *2 Ib., 661; 1 Kern., 453; 2 Pick., 458; Chitty Pl., § 297; 44 N. Y., 653; 62 Ib., 157; and that the vendee is not bound to accept a, title apparently encumbered: Allen v. Atkinson, 21 Mich., 360; that the proper measure of damages is the difference between the contract price and the value of the land at the time of the alleged breach: 3 Pars, on Cont., 231; 9 M. & W., 474; 12 Am., 76; Sedg. on Dam., 200; 18 Vt., 22; 6 Gray, 25.
    
      Severens, JBoudeman <& Turner, for defendant in error,
    argued that the statute of frauds (Comp. L. 1871, § J/.69J/) does not require the purchaser to sign the contract, and that he is liable on the contract signed by the vendor, though his own assent is oral: 14 Mich., 238; 26 lb., 420; 43 Cal., 458; 47 lb., 213; 56 Penn. St., 424; 4 Edw. Ch., 102; 11 Paige, 431; 1 Seld., 229; 16 Wend., 460; that the signing by Tripp, in the presence and at the request of Curran, was in law a signing by the latter: 5 Cush., 483; 4 Bibb., 295; 2 Greenl. Ev., § 295; 3 Nev. & Man., 576; that the failure to file an affidavit denying the execution of the contract operates as an admission, not only of its execution, but also of the capacity in which the defendants contracted: Circuit Court Rule 79; 5 Mich., 26; 7 Mich., 468; that the pendency of the suit in the United States court, between third parties, was immaterial; that the question being, not whether a claim was made to the land, but whether a valid claim really existed, the defendants could not set up an apprehended difficulty as a defense: 10 Ohio, 142; 22 Ark., 435; that the existence of mortgages, not discharged of record, but which are shown to have been paid, does not render the title unmarketable, or amount to a breach of the contract to convey free of encumbrances: 14 Penn. St., 308; 26 lb., 51; 12 JST. Y., 394;
    16 Wend., 30; 21 Mich., 361; that the objection, not being made *when the deed was tendered, was waived, and the defendants estopped from raising it at the trial: 1 Wall., 214; 10 Paige, 386; 6 lb., 410; 16 Wend., 30; 15 Penn. St., 429; 9 Cush., 161; 1 Mood. & Walk., 128; Chitty on Cont., 331; that the tender of the conveyance to Tripp, one of the vendees, was sufficient: 1 Hill on Vendors, 38; 33 Me., 61; that the measure of damages in such a case as this is the contract price with interest: 33 Me., 61; 4 Greenl., 258; 15 Me., 296; 4 Pick., 195; 56 Penn. St., 424; 3 Salk., 108; 1 Vent., 148; Chitty on Cont., 339, note g; 2 Hill on Vendors, 306; Sugd. on Vendors, 314; 11 Barb., 260; Sedgw. on Dam., 198, note s; 11 la., 161; 2 Cush., 358; 8 lb., 225; 1 Pet., 464; 3 Rich., 216; 4 T. R., 161; 8 lb., 466; 3 East, 410; 5 Cow., 506; 52 Penn. St., 363; 21 Wend, 451; 4 Jones, 115; 6 lb., 554; 41 Cal., 213; that the vendee cannot resist the payment of the contract price when he has taken and holds possession of the land, unless he has a right to, and does, rescind the contract and surrender possession to the vendor: 15 Mo., 381; 4 Tex., 430; 23 Barb., 408; 6 Cow., 445; 2 Comst., 408; 12 Ves., 21.
    
      
       The object of Buie 79 is to enable plaintiff to make out a prima facie case only, and defendant may put in any defense to the merits which does not contradict the execution of the instrument: Freeman v. Ellison, 37 Mich., 459. But he must confine himself to such defense: Jacobson v. Miller, 41 Mich., 90.
    
    
      
       Where a written instrument provides for a future election but is silent as to the mode, the election need not be expressed in writing: Barling v. Hnban, 53 Micb., June Term, 1884. See BelasJman v. Berry, 20 Mich., 292; Belter v. Robinson, 50 id., 264.
    
    
      
       T~n addition to cases cited in briefs of counsel, see Rost v. Campau, 42 Mich., 90, as to what makes an encumbrance, and as to damages if the vendor retains the land: Gilbert v. Cherry, 57 Ga., 128, where it is held that the measure is the difference in the value of the land at the agreed price and the depreciated value when the vendor learns of the breach of the contract.
    
   Campbell, J.:

Rogers sued and recovered judgment against Curran & Tripp, for the non-fulfillment of a contract, whereby they were claimed to have agreed to purchase a parcel of timber land. The contract in writing which was sued on provided in the first place for the sale of the timber, separately, at the price of two thousand dollars, and for the refusal of the land for five months at fifteen hundred dollars.

The contract was signed in the name of the firm of Curran & Tripp, who were partners in the lumbering business. Tripp signed it, and Curran was present, bargaining and assenting. Within the five months Rogers was notified in *writing of the conclusion to purchase the land. This notice was given in the firm name, signed by Tripp, and was that “Curran and I have concluded to buy that land as stated in contract. We were to decide before the 20th of April, 1878.” Curran & Tripp took possession and exercised and asserted ownership beyond what related to the timber first purchased. Curran now seeks to avoid the contract as invalid.

The objection that Tripp was not authorized to act for both is not open on this record. The general issue was pleaded without any affidavit, and thus admitted the execution of the papers, which were set out verbatim and alleged to have been jointly executed. The undisputed evidence showed Curran to have been as active as Tripp in performing acts of ownership, as well as in making the bargain, and the effect of the rule which requires an affidavit to open the question of execution is evidently just in this case.

The written contract originally made was in itself a complete bargain, subject only to an act of election. It does not declare in what way the election shall be signified, and whether by writing or by assuming possession can make no difference. The vendor had bound himself by writing, so as to conform to the statute. Whether the written election was or was not clear in describing the property or contract, the assumption of possession and performance of acts of ownership distinct from the use of the timber were unequivocal, and sufficient to operate as an irrevocable election. But we do not intimate that for such a purpose the writing was not adequate.

The vendor tendered in season a proper warranty deed. It was insisted on the trial that the title was not such a clear and marketable one as the law requires.

So far as mortgages are concerned, we think that evidence of the payment of such as were outstanding was sufficient. Mortgagees in this state have no right of possession, and can only enforce their claims through foreclosure. Until the property is sold on a foreclosure beyond redemption, *there is no right of entry. Proof of j)ayment, therefore, is proof that there is no encumbrance, and it would be going beyond reason to allow the non-release of record to stand as evidence of a bad title.

It is questionable whether the time allowed in this contract for election should not be regarded as designed, as it was certainly adapted, to enable the defendants ,to inquire concerning such matters as were reasonably open to inquiry. It would be natural, at least, for persons so situated to use the interval for that purpose.

The testimony concerning the.litigation in the United States court concerning this title was rightly disregarded. The suit was between different parties, and while these lands happened to be included in the large number of parcels there involved, no attempt was made to attack the title owned by Rogers. Probably the persons who in that case desired to avoid certain conveyances as fraudulent, understood that property which had gone into the hands of innocent third persons could not be reached. But however this may be, they did not implead the holder of this title, and if there was any thing in the facts assumed in their bill which could affect it, those facts should have been proven here. Titles cannot be encumbered by assertions of third persons, and a litigation purely between third persons is no more than any other assertion.

It is also insisted that Rogers did not tender a conveyance within a reasonable time. It is enough to say that there had been no attempt to rescind on the other side, and until some such attempt was made, time was not made essential. No such reason was given when the deed was tendered, and if it had been it could have been of no service so long as the purchasers retained general control of the land.

The plaintiff below recovered the price of the land as damages. This he was clearly entitled to. He had sold it for a given sum, and the equitable title to the land had become vested in the purchasers, who became liable for *payment of the purchase money. He is entitled to recover precisely what they agreed to pay, so long as he was ready and willing to carry out his own part of the bargain. He cannot be compelled to take the land back, and he has a right to insist on their retaining it, which a court of equity could in any case, and would in a case where they remain, in possession, enforce specifically by compelling payment. There is no reason for denying him the same right in a court of law, of compelling defendants to do as they agreed.

There is no error in the record, and the judgment must be affirmed, with costs.

The other justices concurred.  