Sec. 186. Foreclosure by Vendor, Nature of Action.

Sec. 187. What Actions are Waived by Pursuing Remedy of Foreclosure.

Sec. 188. Pursuing Foreclosure and Action at Law for Purchase Price Con currently.

Sec. 189. Foreclosure of Land Contract-Bill of Complaint Form.

Sec. 190. Decree of Foreclosure-Form.

Sec. 191. Commissioner's Deed on Foreclosure Sale.

Sec. 192. Notice of Sale by Circuit Court Commissioner-Form.

Sec. 193. Affidavit of Posting Notices of Sale-Form.

Sec. 194. Circuit Court Commissioner's Report of Sale-Form.

Sec. 195. Exhibit C-Statement of Fees and Disbursements by Circuit Court Commissioner on Sale.

Sec. 196. Forms of Receipts From Circuit Court Commissioner.

Sec. 196A. Pleadings and Briefs Used in Late Michigan Cases in the Foreclosure of Vendor's Liens.

Sec.186. Foreclosure By Vendor, Nature Of Action

Strictly speaking the vendor's interest in the property sold under a land contract under which possession has been given to the vendee is not a legal estate nor has the vendor a lien on the property as security for the purchase price. His interest is a mere equitable charge on the land which can be established as a lien by judicial decree and is foreclosed in proceedings which are in many respects analogous to the foreclosure of mortgages.1

Said the Michigan Supreme Court in one case with reference to the nature of the vendor's interest, "while at law the title remains in the vendor, yet in equity the contract conveys it to the vendee and the only principle which allows the vendor to sue for his money and at the same time seek security against the land, is the one which recognizes the analogy to the vendor's lien," in cases where the legal title has been conveyed. The title of the vendee whether legal or equitable can only be divested by sale.2

1. Pomeroy Equity Jurisprudence, Vol. 3, Sec. 1260.

2. Fitzhugh v. Maxwell, 31 Mich. 178.

In another case the court said the claim of the vendor is but an ordinary money debt, secured by the contract.3

In equity, the action to enforce the so-called lien is an action to compel the vendee to make a payment of the purchase price within a specified time or else be barred of all rights under the contract. It is common to speak of the interest of a vendor and vendee under a land contract as being analogous to the interest held by mortgagee under a mortgage, but this is not an accurate use of the terms, as the vendor has the complete legal title and the vendee cannot defeat such title by any act or transfer even to or with a bona fide purchaser.4

Foreclosure proceedings in relation to land contracts are not governed by the statutory provisions relating to the foreclosure of mortgages.5

The time given for the vendee to redeem by paying up all arrearages on the contract is usually short, thirty to sixty days from the date of the decree, failing in which the decree provides for a sale of the premises, and immediate possession by the purchaser.6

The decree usually provides that the defendant who was the original vendee on the contract shall pay any deficiency between the selling price of the premises and the contract price.7

The property should be advertised by the commissioner for the same length of time and in the manner provided for the sales of property under mortgage foreclosure.8

3. Walker v. Casgrain, 101 Mich. 608.

4. Jones v. Bowling, 117 Mich. 288 (292); Bowen v. Lansing, 129 Mich. 117.

5. Jones v. Bowling, Supra.

6. Jones v. Bowling, Supra. Holding that foreclosure proceedings in relation to land contracts are not governed by the limitation imposed by statute in relation to proceeding in the foreclosure of mortgages.

7. Schmide v. Gaukler, 156 Mich. 243.

8. Jones v. Bowling, Supra. As to the sale of mortgage premises Compiled Laws, Sec. 12683, provides that such sale shall be at public vendue between the hours of nine o'clock in the morning and the setting of the sun, at the court house or place of holding the Cir-Court in the county in which the real estate or some part thereof Is situated, or at such other place as the court shall direct. Circuit Court Rule 58, Sec. 5, provides that sales under decrees of foreclosure shall not be ordered on less than six full weeks, or forty-two days'

Where the vendor effects a sale of the premises upon which a land contract is outstanding, it is a general rule that the party to whom such vendor sells will be subrogated to all the rights of the vendor with respect to the land in question. While he succeeds to all the rights of the vendor in the property thus conveyed, either as to foreclosure of the vendor's lien or other remedies, he also takes it subject to all the equitable rights of the original vendee and usually equity will compel him to specifically perform the contract in the same manner as the original vendor.9

Before the vendor can maintain any action against the vendee in foreclosing the contract it is necessary that the vendor himself must not have been guilty of any substantial breach of such contract, as it is a well settled principle of law that he who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for a subsequent failure on his part to perform.10

Where the vendee has conveyed his interest in the property or has leased the same, all such parties in interest should be made parties defendant in the action of foreclosure.11

It may farther be noted in this connection that the vendee has an equitable charge on the real estate covered by the contract of purchase, which is a counterpart of the vendor's so-called lien as security for the purchase money the vendee has paid and for the performance of the vendee's obligation to convey, which can be enforced in exactly the same manner by foreclosure as the vendor's so-called lien.12 notice, and publication shall not commence until the time fixed by decree for payment has expired, nor within six months after commencement of suit.

9. Gates on Real Property, Sec. 615-B. 26 Am. & Eng. Encyc. of Law 26; see also 11 Warvelle on Vendors, Sec. 735; Jackson v. Groat (N. Y. 1847), 7 Cow. 285; Haugh-wont v. Murphy, 22 N. J. Eq. 531; Ohio River Junction R. Co. v. Pa. Co., 222 Pa. 573, 72 Atl. 271; Farady Coke Etc. Co. v. Ownes, 26 Ky.

Law Rep. 243, 80 S. W. 771; Mueller v. Nortman, 116 111. 468, 96 Am. St. Rep. 997, 93 N. W. 539.

10. Jones v. Berkey, 181 Mich. 472; Boone v. Perrigo, 217 Mich. 47.

11. Schmidt v. Gaukler, 156 Mich. 243.

12. Pomeroy's Equity Juris. Sec. 1263; Felkner v. Tighe, 39 Ark. 357; Stults v. Brown. 112 Ind. 370, 2 Am. St. Rep. 190, 14 N. E. 230; Coleman v. Floyd, 131 Ind. 330, 31 N. E. 75; Ellison v. Branstrattor, 45 Ind. App. 307, 88 N. E. 963, 89