
    DIBBLE v. HARROW.
    1. Vendor, and Purchaser — Default—Declaration—Pleading— Variance.
    Where, in action for payments due on land eontraet, declaration recites that plaintiffs succeeded to interest of another, now deceased, by order of assignment of probate court, and affidavit contains like recital, statement that plaintiffs’ interest is by inheritance is construed, on appeal, as meaning same as averment of declaration; no issue being created thereby.
    2. Same — Vendor’s Default in Paying Mortgage — Rule Applicable.
    Where vendee’s failure to pay instalments due on land eontraet is responsible for vendors’ failure to make payments due on mortgage, rule that vendor is not entitled to enforce contract while in default on mortgage is not applicable; especially where vendee has not paid his portion of mortgage debt assumed by him, and where eontraet permits him to make payments direct to mortgagee in event of vendors’ failure to pay.
    3. Same — Summary Judgment.
    Vendors are entitled to summary judgment for past-due instalments on land contract, notwithstanding they are in default in making payments due on mortgage, where their default is caused by vendee’s failure to pay, and latter has privilege of making payments direct to mortgagee.
    Appeal from Wayne; Lamb (Fred 8.), J., presiding.
    Submitted January 10, 1933.
    (Docket No. 88, Calendar No. 36,567.)
    Decided April 4, 1933.
    Assumpsit by Lois A. Dibble and another against Alfred T. Harrow for instalments dne on a land contract. Summary judgment for plaintiffs. Defendant appeals.
    Affirmed.
    
      
      Frank C. Cook and John P. O’Hara (A. L. Baumann, of counsel), for plaintiffs.
    
      Wilkinson, Lowther & O’Connell, for defendant.
   Clark, J.

Plaintiffs sued to recover instalments due on a land contract, and had summary judgment, from which defendant has appealed. The interest of plaintiffs is questioned. The declaration is that plaintiffs, who, with Euphemia Rennie, signed the contract as vendors, have succeeded to the interest of Mrs. Rennie, now deceased, hy order of assignment of the probate court. An affidavit contains a like recital. In one instance plaintiffs’ interest is stated to be by inheritance. But, on the-record, this statement creates no issue, and it is here construed as meaning the same as the averment of the declaration.

Citing Dirr v. Hitchman, 260 Mich. 179, defendant contends that past-due instalments of the contract may not be recovered, as plaintiffs are in default in making payments on the mortgage of $8,000. Defendant purchased and took deed of an undivided one-fourth of the property, and in that connection assumed and agreed to pay one-fourth of the mortgage debt. The land contract for the undivided three-fourths was made on December 13,1927. It is subsequent to the mortgage. The purchase price named in the land contract is $15,000, with $2,000 paid down, and remainder in monthly instalments of $130 each. Between June 12, 1930, and time of commencing suit, January 7, 1932, instalments accrued in the total of $2,440, for recovery of which this suit is brought. If this sum were paid, the remainder to become due on the contract would be largely in excess of the amount of the mortgage. The mortgagee is willing to extend time for an additional period of three years upon partial payment, the amount of which is less than the total of sums past due and owed by defendant on the contract. Defendant has not paid his portion of the mortgage debt. The contract permits him to make payments direct to mortgagee in event of plaintiffs’ failure to pay.

On the facts as stated, and as the record is that defendant purchaser is responsible for failure- of plaintiffs in respect of the mortgage, the fact of mortgage is no defense to this action for purchase money. The case is not ruled by Dirr v. Hitchman, supra, but in principle by Langley v. Kirker, 247 Mich. 443, and Heath v. Gloster, 260 Mich. 85. See 39 Cyc. p. 1931. We find no error in ordering summary judgment.

Affirmed.

McDonald, C. J., and Potter, Sharpe, North, Pead, Wiest, and Btjtzel, JJ., concurred.  