Flynn v Korneffel

Levin, J.

(dissenting). The plaintiffs, Wendell C. Flynn and Margaret Ann Flynn, were purchasing a home on land contract. They failed timely to pay amounts due, including a final balloon amount. The seller commenced summary proceedings to forfeit their interest and to obtain possession.

Because the defendants, Curtis G. Korneffel and Maureen A. Korneffel, hoped the Flynns would not be able to redeem within the ninety-day period provided by statute, the Komeffels bought into this lawsuit by purchasing the seller’s interest under the land con*208tract, and were substituted as plaintiffs. A judgment of forfeiture and possession for breach of the land contract was entered, stating that the Flynns owed $455,833.35, and that they had until June 28, 1988, to cure the breach.

Flynn and Smereka, the lawyer designated by the Komeffels to represent them in further dealings with the Flynns, spoke on the telephone before 10:00 A.M. on the morning of the last day, June 28. Flynn advised Smereka that he would have the redemption money before the end of the day and that he would need a deed from the Komeffels pursuant to the land contract conveying the premises to the Flynns and discharges of mortgages from the original seller to a bank aggregating, in original amount, $505,000 — more than the amount of the judgment.1

At one point in the conversation, Smereka said that he would call Flynn back later in the day. Subsequently, Smereka became perturbed and hung up on Flynn. He did not call back. Smereka and his wife then left for the rest of the day on a shopping trip. Before doing so, Smereka advised his client that he need not remain in his office, and that he too could leave for the rest of the day.

Smereka did not prepare a deed of conveyance to be signed by the Komeffels. Nor did he look for the discharges of the mortgages that he had earlier obtained after the Komeffels purchased the property and the vendor’s interest in the land contract from the original seller.

*209At approximately 2:30 P.M. of the last day, June 28, Lawyers Title Insurance Corporation received a cashier’s check for over $550,000 on behalf of the Flynns. Anthony Brinkman, a Lawyers Title officer, and Flynn made a number of telephone calls to Smereka and Korneffel in an effort to set up a closing at Lawyers Title’s office in Troy. Neither Smereka nor Korneffel could be reached until after 6:00 P.M.2

At that hour, Flynn hand delivered to Smereka at his home/office a letter from Lawyers Title advising that the Flynns had placed in escrow the sum of $466,510.95 to satisfy the judgment, and that they had also left additional monies should there be any discrepancies in the account. The letter stated that Lawyers Title would disburse the funds upon receipt of a warranty deed of the premises from the Komeffels and the discharges of the mortgages from the original seller to the bank.

*210On remand from the Court of Appeals,3 the district court ruled that the summary proceeding statute

• does not require a land contract vendor to “submit deeds and mortgage discharges to the vendee as part of the redemption process,” or

• “to cooperate by way of attending a closing or submitting the documents as required by Flynn and as a result, Komeffel and his attorney had no obligation to return phone calls to Flynn in pursuance of Flynn’s efforts in this respect.”4

The Court of Appeals, which had retained jurisdiction, entered an order without opinion, stating that it found no error in the district court’s opinion on remand.5

*211i

The question then is whether a land contract vendor is obliged to deliver to the vendee a warranty deed (and, where there are encumbrances created by the seller, discharges) conveying a marketable title simultaneously with payment by the vendee of the entire unpaid balance required to be paid to redeem from the forfeiture.

I would hold that when the amount required to be paid to redeem from the forfeiture is not a periodic installment, but represents the entire unpaid balance of principal and interest, the vendor is obliged to deliver to the vendee — simultaneously in exchange for receipt of the amount required to fully pay the contract and to redeem from the forfeiture — a warranty deed conveying to the vendee a marketable title of the premises and discharges of any encumbrances created by the seller.6

*212I would so hold because

• The land contract so expressly provides, stating:

The seller agrees as follows:
(c) Upon receiving payment in full of all sums owing herein, less the amount then due on any existing mortgage or mortgages, and the surrender of the duplicate of this contract, to execute and deliver to the Purchaser or the Purchaser’s assigns, a good and sufficient Warranty Deed conveying title to said land, subject to aforesaid restrictions and easements and subject to any then existing mortgage or mortgages, and free from all other encumbrances, except such as may be herein set forth, and except such encumbrances as shall have accrued or attached since the date hereof through the acts or omissions of persons other than the Seller or his assigns. [Emphasis added.]

• The land contract remains in full force and effect unless the forfeiture becomes absolute.7 A vendor is therefore, as with contracts generally, under a “duty of good faith and *213fair dealing in its performance and its enforcement.”8 This requires the vendor— when notified, as the Komeffels were not later than the morning of the last day, June 28, that the vendee requires simultaneous exchange of the deed and discharges for the money9 — to deliver the deed and discharges simultaneously in exchange for receipt of the money.10

*214ii

The summary proceeding statute does not, indeed, provide that a land contract vendor, upon payment in full of the balance owing (the amount required in this case to redeem), has an obligation to convey marketable title.11 Nevertheless, everyone — Smereka, the Komeffels and, I expect, the majority also — recognizes that, the silence of the statute notwithstanding, had the Flynns paid the entire unpaid balance (the redemption amount) by June 28 and not demanded a deed of conveyance and the discharges at that time, the Komeffels would have been obliged, in due course, to convey a marketable title and to furnish the discharges.12

*215We thus, I think, would all agree that the failure of the statute to expressly advert to the vendor’s contractual obligation to convey a marketable title upon receipt of full payment did not relieve the Komeffels of their contractual obligation to convey a marketable title in due course.13

*216It is, thus, false to assert that, because the summary proceeding statute does not expressly set forth that the vendor continues to be obligated during the redemption period to convey a marketable title upon (or following) receipt of full payment, the scope of the vendor’s obligations during the redemption period is narrowed.14

*217The majority’s construction of the summary proceedings statute rests on the misperception that the statute provides a begrudged period of leniency for vendees in default, and that the statute allows vendors to do nothing during the redemption period beyond accepting a check.

This Court observed:

Sellers no longer are at liberty immediately after forfeiture of a land contract to seize possession of premises and put purchasers out on the street. Forfeiture can be effected only upon observance of procedures which provide land contract purchasers with protections similar to, in many cases equal to or better than, those provided mortgagors. [Gruskin v Fisher, 405 Mich 51, 58; 273 NW2d 893 (1979).]

As this passage indicates, while the summary proceedings statute provides a procedure to enforce the vendor’s rights, it also provides protection for vendees. The majority’s construction is strained, and is contrary to the legislative intent15 to codify the law’s *218abhorrence of forfeitures into a straightforward procedural system.

The statute creates a legal right in vendors to initiate forfeiture proceedings and a legal right in vendees to redeem after judgment. Contrary to the majority’s assertion, the right is no longer “equitable.” Ante, p 198. The “reasonableness” of the vendee’s actions is not determinative if he has complied with the terms of the statute. As the majority notes, “the right to redeem is a statutory, legal right that may not be enlarged or abridged by the courts.” Ante, p 201.

Although acknowledging this principle, the majority abridges the rights of a vendee to redeem pursuant to the land contract by refashioning the tender rule into an absolute reprieve of any obligation on the part of the vendor to participate in the redemption except for having someone available to accept an unconditional payment — documentation to follow when the vendor decides it is convenient to fulfill his obligations under the contract.

m

There is no need to consider whether the land contract and the accompanying duty of good faith and fair dealing obliged the Komeffels or their lawyer, Smereka, to attend a closing at the Lawyers Title office — to travel from Grosse He (where the Komeffels reside) or Northville (where Smereka had his home/office) to Troy, where Lawyers Title office was located, to receive a Lawyers Title check for $466,510.95.

Nor was it of any significance that Flynn obtained the money and offered to redeem at the eleventh hour, or whether Smereka made himself unavailable *219by leaving, after hanging up on Flynn on the morning of June 28, on the assertedly long-planned shopping trip with his wife.

Smereka, aware of Komeffel’s desire to thwart redemption, maintained (and the district court subsequently agreed) that the Komeffels had no obligation to facilitate the redemption by exchanging the deed and discharges upon receipt of the money. Smereka maintained that it was the Flynns’ obligation to pay the $466,510.95 to redeem without simultaneous delivery of a deed or discharges of encumbrances, and that the Komeffels could, thus, at their convenience— possibly their leisure — provide the requisite deed and discharges at some indefinite time after receipt of the redemption money.

After speaking to Flynn on the morning of June 28, Smereka did not prepare the discharges for recording or seek to have them available16 so that he would have them in hand to deliver to the Flynns should they offer to redeem. Nor did Smereka prepare a deed of conveyance to be signed by the Komeffels, and request that the deed be signed and returned to him so that he would have a deed should the Flynns offer to redeem. Smereka told Korneffel that he too could take the rest of the day off and need not remain in his office. He too could be unavailable.17

In Smereka’s and the district court’s analysis, this obstructionism would have been legally justified even *220if Flynn had earlier deposited the money with Lawyers Title (e.g., on the tenth or the seventy-fifth day) and had offered to redeem in exchange for delivery of the deed and discharges, or even if Smereka had remained in his office throughout the last day, June 28, and had not gone on the long-planned shopping trip, and even if Lawyers Title had tendered a check at Smereka’s office in Northville.

Because Smereka maintained that he had no obligation on June 28 to have ready the mortgage discharges, and no obligation to prepare and have in hand a signed deed of conveyance from the Korneffels, even if Smereka had remained in his office all day and the Lawyers Title check had been presented in his office, he would have been unable to deliver, and asserted he had no obligation simultaneously then to deliver, a deed and the discharges.

The true and only issue in this case is thus simply whether the Komeffels were obliged simultaneously to exchange deed and discharges for the money.

If, as the district court ruled, a vendor has no obligation to cooperate during the ninety-day redemption period, by simultaneously furnishing a deed and discharges of any vendor-created encumbrances in exchange for the money, and thereby facilitate new financing, or a sale to a purchaser, then the law permits the vendor to frustrate new financing or a sale needed to redeem, whether on the tenth or seventy-fifth day or at the eleventh hour on the last day.

IV

But the law is not so foolish. The case law does not negate the obligation of the vendor to provide the deed and requisite discharges simultaneously in *221exchange for payment in full of the contract balance and redemption amount.

The majority states that “in order to effectuate the right of redemption, the full amount, not merely an offer, must be tendered without qualification or condition. Kaiser v Weber, 301 Mich 609; 4 NW2d 29 (1942).”18 (Emphasis added.)

The statement that a tender must be “without qualification or condition” is an accurate generalization, but does not fully state the law, which recognizes that a debtor making tender may interpose conditions that have a “foundation in the contractual relation,” and that there are certain conditions that a “debtor has the right to insist on” as “when the performance of an act on the part of the creditor is to be precedent to or concurrent with the payment by the debtor.”19 (Emphasis added.)

*222A number of courts have ruled that a “tender is not conditional ... if the condition is one which the person making the tender has a legal right to insist upon.”20

The stipulation, in the letter delivered on June 28 from Lawyers Title to Smereka, that the Komeffels furnish a deed of conveyance and discharges of the mortgages had a “foundation in the contractual relation”; the land contract obliged the Komeffels “upon” *223receipt of full payment to convey a marketable title. Those stipulations regarding the furnishing of a deed and discharges were ones “which the debtor ha[d] the right to insist on.” The timely furnishing of the deeds and discharges was “the performance of an act on the part of the creditor” that was to be “concurrent with the payment by the debtor,” and thus the Flynns could make their offer depend on the due performance by the Komeffels of those obligations under the contract.21

In Kaiser, five years after the vendor had reobtained possession of the premises in the course of land contract forfeiture proceedings during the Great Depression, the plaintiffs sought to reopen the matter by an action in chancery. They claimed that their lawyer had made an arrangement to obtain a loan to redeem the property. The lawyer testified that he advised the vendor that the payment would be made when the vendors delivered the deed. But no formal written tender was made to the vendors or their attorneys. This Court ruled that it would introduce an “unsafe and litigious element” if this Court were to hold that “an offer to perform, with ability to do so,” was a sufficient tender. Id., p 616.

*224The majority states that Komeffel and Smereka “were prepared to accept the redemption money if tendered. We believe that the present case is one similar to Grossman [Bldg Co v Elliott, 382 Mich 596; 171 NW2d 441 (1969)], where the ‘negotiations between the parties’ attorneys came to an impasse.’ ”22

In Grossman, the vendor declined to forward a deed to a bank where the vendee may have arranged a new loan. In the instant case, Smereka took obstructionism one step further in taking the position that Komeffel was not obliged to provide a deed and the discharges simultaneously in exchange for the money.

In contrast with the instant case, the vendee in Grossman did not deposit the money with a recognized escrow agent, and did not make a formal tender together with a demand for the deed. The vendee’s response in Grossman was to do nothing; it was not until after the time for redemption had expired that he commenced proceedings.

Grossman stands for the proposition that an anticipatory breach by the vendor — the refusal to forward a deed to a lender — did not relieve the vendee of the obligation to make a formal tender, and to show that it had the money to back up the tender. Grossman does not stand for the proposition that if the vendee makes a formal tender with irrefutable evidence that the money is there, the vendor has no obligation to simultaneously provide a deed conveying a marketable title in exchange for the money.

In Kaiser and Grossman there were only promises to pay from vendees who had already failed to keep *225their promises of payment, resulting in an action to foreclose in Grossman and an action to forfeit in Kaiser. Placing money in escrow with a recognized escrow agent is not just another promise. Placing money in escrow is concrete evidence of ability to perform. It does not introduce an “unsafe and litigious” inquiry regarding the ability to perform pursuant to the terms of the tender. Placing the money in escrow with a title company, with notice to the vendor that it will be released to him upon performance of his obligations under the land contract, is tender.

v

The majority at no point adverts to the vendor’s responsibility to provide, “upon” receipt of payment in full, a warranty deed conveying a marketable title.

The majority affirms the trial court’s decision that Korneffel was entitled to require payment of the redemption money without simultaneously delivering in exchange a deed of conveyance and the mortgage discharges.

The majority asserts that it does not decide the case of a vendee who notifies the vendor in a reasonable manner and within reasonable time of a third-party lender’s conditions on disbursement of redemption funds. But the majority is deciding that case also if its opinion is read as accepting Smereka’s and the district court’s analysis that there is no obligation to furnish a deed and discharges simultaneously in exchange for the money. Deposit of the redemption money with the district court would not have provided the requisite deed and discharges needed to authorize Lawyers Title to release the money.

*226If the law does not require simultaneous exchange of money and deed and discharges during the redemption period, no court could lawfully require simultaneous exchange even if the money had been on deposit with an escrow agent for over a month, and a month still remained in the redemption period.

If the majority truly is not deciding this issue, it is introducing an “unsafe and litigious element” into land contract law by requiring that cases be brought to define what is “a reasonable manner” of notification and what constitutes “a reasonable time.”

There is no need to decide what is “reasonable” because the Legislature has already done so. The statute provides that vendees who have not yet paid fifty percent of the principal owing under the contract have ninety days to redeem. While ideally notifications and redemption will be done earlier, a party may need the full ninety days to find a lender or purchaser. If this does not happen until “the eleventh hour,” ante, p 207, the statute does not authorize a court to ignore the vendee’s efforts because he uses a full twelve hours.

If “reasonableness” is judicially written into the statute, the majority abridges the legal right to redeem under the statute as written by shortening the time to acquire financing from ninety days, to a “reasonable” period before ninety days that a particular judge believes to be appropriate.

“Ninety days” is not subject to judicial interpretation. This Court should apply the statute as written.

Either both the vendor and vendee must cut square comers, or only the vendee is required to do so. All else — whether Smereka purposefully made himself unavailable, whether Smereka was obliged to cross *227the street or travel to Troy to obtain the redemption money, or whether the Flynns should have acted before the eleventh hour — is a sideshow.

Either the vendee may require, to facilitate refinancing or a sale, that the deed and discharges be delivered simultaneously with payment in full, or the vendor has a right to insist on payment in full before bothering to assemble discharges and prepare and sign a deed conveying a marketable title.

VI

I acknowledge that the statute does not address the question whether the vendor is required to deliver a deed of conveyance and discharges of any encumbrances created by the vendor simultaneously in exchange for payment of the redemption money. That is left to the contract between the parties.

I also acknowledge that the land contract does not in so many words address the question whether a simultaneous exchange is required. I contend however, that the contract contemplates a simultaneous exchange.

I would hold that the contractual obligation to convey “upon receiving payment in full” obligates the vendor to provide a simultaneous exchange of marketable title sufficient to meet the demands of a reasonable title insurer, which, ordinarily, almost always, will be neither more nor less than what the vendee’s third-party lender would require.

The Random House Dictionary of the English Language, Second Edition Unabridged, defines “upon” as meaning “immediately or very soon after.” It is not a stretch of the English language to define “upon” as meaning “immediately.”

*228This Court has the power, of course, to rule that “upon” means “very soon after,” with the result that a land contract vendor can stonewall the vendee, as the Komeffels did on the advice of Smereka.

Whether one definition or another is to be adopted is the issue posed by this appeal. This Court has a choice. It can define “upon” in a way that makes it impossible for a land contract vendee in default to refinance or sell the property — because if the vendor does not have an obligation to convey and furnish discharges of mortgages until “very soon after,” that will never be soon enough for a lender or a purchaser.

Or the Court can, as I think it should, define “upon” as meaning “immediately,” to facilitate refinancing or sale.

There is only one construction that is consistent with the history and spirit of the summary proceeding statute, the contractual obligation of good faith and fair dealing, and the expectations of the profession generally.23 Practitioners, I am confident, would expect this Court to adopt the view that the vendor is obliged, simultaneously upon receipt of the redemption money, to furnish, in these circumstances, a deed and any discharges necessary to clear the title.

Most lawyers, I believe, would also agree that the obligation of good faith and fair dealing would oblige a vendor to cross the street24 to obtain the redemption money, possibly even to travel from Northville or Grosse He to Troy to obtain the redemption money at a closing, and certainly to have ready the documents *229necessary to complete the contract once the redemption money is available.

vn

In sum, the land contract expressly obliged the Komeffels to deliver to the Flynns a warranty deed of conveyance free from all encumbrances25 “upon payment in full of all sums owing on the land contract.” Absent delivery of such a deed and discharges of the mortgages aggregating $505,000 in original amount, the Flynns would not have a marketable title justifying disbursement by Lawyers Title of $466,510.95.

The Flynns needed and were justified in requiring simultaneous delivery of the deed and discharges; the land contract expressly provided that “upon full payment” the seller would convey a marketable title. This, coupled with the obligation implicit in contracts generally of good faith and fair dealing, obliged the Komeffels minimally to have available in Smereka’s office in Northville such a deed and those discharges to be exchanged for a Lawyers Title check for $466,510.95 at Smereka’s convenience at some time designated by him in response to the many telephone calls from Lawyers Title beginning at 2:30 P.M. on June 28.

The money was there. It was on deposit with Lawyers Title, nationally recognized as an escrow agent, to facilitate the exchange of money and documents affecting real estate.

The case law relied on by the Komeffels does not hold that a land, contract vendee may not insist on *230simultaneous exchange of payment in full and of documents of conveyance and discharge needed to vest a marketable title in the vendee. Rather, the law is to the contrary: a vendee may insist on performance of an act by the vendor that is to be concurrent with payment in full by the vendee.

The tender by Lawyers Title in behalf of the Flynns imposed no stipulation other than performance by the Komeffels of their contractual obligations to convey a marketable title “upon” receipt of full payment, a stipulation that the Flynns were legally entitled to impose. Because the stipulation concerned only the Komeffels’ express obligations under the contract, the tender was sufficient to redeem. Because the tender was sufficient, and timely, the Flynns did not have the burden of establishing fraud.

The decision of the Court of Appeals should be reversed.

Cavanagh and Mallett, JJ., concurred with Levin, J.

The mortgages had been fully paid, but discharges had not been recorded.

The district court judge found that Brinkman “delayed making any calls to Korneffel or Smereka until after he had the cashier’s check in his possession which the court finds to be at approximately 2:30 P.M. on June 28, 1988. Flynn testified that he telephoned Smereka on June 28, 1988, and left a message on Smerelca’s phone recorder that he had set up the closing for 2:00 p.m and the evidence shows that this is the first time that Flynn actually advised Smereka of the time of the closing .... Brinkman testified that he understood the significance of the deadline and further testified that he telephoned Korneffel once but was unable to reach Korneffel by phone and attempted to call Smereka two or three times and left messages on his phone recorder.”

The judge referred to Korneffel’s testimony “that a call had been received by his staff from Anthony Brinkman at approximately 4:00 p.m. and several calls from Flynn were received by Komeffel’s staff but that he never returned the phone calls.”

The judge said that Smereka had an answering machine that he listened to after going shopping “to determine that Flynn had attempted to phone him several times while he was shopping with his wife and that Anthony Brinkman [from Lawyers Title] had attempted to call him once while he was away shopping.”

Unpublished opinion per curiam, issued March 30, 1993 (Docket No. 125687).

The district judge continued in the same vein:

Komeffel and Smereka did have the right to rely on the statute and case law and their failure to return phone calls to Flynn only prevented Flynn from hearing a refusal to attend a closing, but did not otherwise deprive Flynn of his right to redeem the property pursuant to the methods provided by statute and case law.

It appears from papers filed with this Court by the Korneffels after this case was argued, that the Flynns filed an appeal bond for $460,000, which was subsequently increased an additional $100,000.

The Korneffels asserted that real estate taxes amount to over $2,000 per month, and that equitable rent of $118.64 per day has accrued since February, 1988, or $43,303.60 per year, or over $350,000 in equitable rent during the pendency of this litigation.

The Flynns’ lawyer asserted that the Korneffels placed a value on the property of weE over a miflion doEars in the proceedings to fix bonds.

It thus appears that as a result of today’s decision, the Flynns suffer a forfeiture exceeding $500,000, plus an amount yet to be determined for equitable rent during the eight-plus years this Htigation has been pending.

There is no need to consider in the instant case whether a vendor should be notified by the vendee in advance, or for how long in advance or by what means, that the vendee requires simultaneous exchange of payment in full and the deed and discharges.

Korneffel was notified by Flynn on April 8, and again on June 27, that he intended to redeem. When Flynn spoke with Smereka on the morning of June 28, he said that he would need the deed and the discharges. Smereka expressed suiprise that the discharges had not been recorded, although he acknowledged that it was his responsibility to do so.'' See n 16.

Korneffel had obtained the discharges when he purchased the vendor’s interest from the original seller. Between the morning and afternoon of June 28, there was ample time for Smereka to find the discharges, and ample time for Smereka to prepare a warranty deed to be signed by Korneffel and his wife.

A copy of the deed of conveyance from the original seller to the Komeffels is part of the record. All that Smereka needed to do was to copy the very same deed, substituting the Komeffels as grantors and the Flynns as grantees. Preparation of the deed would not have delayed Smereka more than a few minutes in embarking on his “previously arranged shopping trip with his wife.” Ante, p 193.

My response to the majority’s assertion that because “the Flynns were in default and thus ‘beyond the contract,’ ” ante, p 206, n 33, is set forth in n 14.

After a default in payment of a periodic installment, the vendor has the option of commencing either summary proceedings, or an action to foreclose “in equity.”

This land contract contained the standard provision that if the default continued for a period of forty-five days or more, and the vendor desired to foreclose the contract “in equity,” he could declare the entire unpaid balance due and payable. If the Komeffels had foreclosed in equity, there would have been no forfeiture of the vendee’s interest in the land contract, and the contract would have remained in full force and effect until the period of redemption from a foreclosure had expired.

*213Although a forfeiture is declared by a vendor before and upon commencing summary proceedings, the forfeiture does not become absolute unless the vendee fails to redeem. Thus, if the vendee fails to pay installments and a judgment of forfeiture and for possession is entered, and the vendee timely redeems, the forfeiture does not become absolute, the vendee is entitled to remain in possession, and the land contract remains in full force and effect.

Similarly, in the instant case, where the default was not respecting a periodic installment, but, rather, the entire unpaid balance that had become due, unless the forfeiture became absolute because the Flynns failed timely to redeem, the land contract remained in full force and effect.

Every contract imposes upon each party a duty of good faith and fan- dealing in its performance and its enforcement. [2 Restatement Contracts, 2d, § 205, p 99 (emphasis added).]

This Court observed that “the vendor under a land contract holds the legal title as trustee for the vendee and trust relations are an element of the contract.” Curry v Curry, 213 Mich 309, 315; 182 NW 98 (1921).

See n 6.

The majority asserts (ante, p 191, n 5) that, in relying on the “duty of good faith and fair dealing” in the performance and enforcement of a contract, n 8 supra, I make my own “findings of fact.” The majority further asserts that this dissent is based “in substantial part” on such “purport[ed]” findings that the Komeffels did not discharge their contractual duty to perform in good faith and to deal fairly. The majority also states that my “own findings of fact” are “belied” by the district court’s finding that neither Korneffel nor his lawyer “exhibited bad faith.”

This dissent does not depend on whether the Komeffels and Smereka acted in good faith and dealt fairly with the Flynns. Even if there were no doctrine of good faith and fair dealing, the Komeffels nevertheless were contractually obliged to simultaneously exchange a warranty deed and mortgage discharges “upon” payment of the amount owing. They refused to do so, insisting on the erroneous view, advanced by their lawyer (Smer*214eka), the district court judge, and now by the majority, that they were not under a legal obligation to do so.

One need not go so far as to say that the Komeffels were guilty of bad faith. Assuming arguendo that they were not, it would not follow that their conduct and that of their lawyer, Smereka, could properly be described as conduct commensurate with the obligation of good faith and fair dealing. Smereka testified that he would not walk across the street to accept the redemption money, and advised Komeffel that he did not have to be available on June 28 because his sole obligation was to accept the check (which his staff could do) if it was tendered.

I would be hard-pressed to make an argument in support of the district court finding that the Komeffels’ and Smereka’s conduct did not evidence bad faith. It is almost impossible to argue that their conduct exemplified good faith and fair dealing. In all events, they were obliged — good faith/bad faith/no faith — to exchange a warranty deed and mortgage discharges upon receipt of the redemption money.

Contrary to the rntyority’s assertion (ante, p 205), I would not “engraft upon the statute an obligation to convey ‘marketable title.’ ” The statute does not address the title to be conveyed upon payment, and a vendee may, knowingly or unwittingly, agree to purchase a title that, in the minds of some, is unmarketable. For example, some land contracts may call for a quitclaim deed or a deed with covenants only respecting the vendor’s own acts. Thus, the obligations of the vendor and vendee respecting the title to be conveyed depend on the contract between them, not the summary proceedings statute.

The majority does not acknowledge or discuss the Komeffels’ obligation under the land contract to deliver, upon payment in full, a marketable *215title, or a good and sufficient warranty deed conveying marketable title to the property free of all encumbrances except those created by persons other than the original seller or the Komeffels.

The majority adverts to the mortgages undischarged of record, but stresses that a warranty deed from the original seller to the Komeffels had been recorded “which evidenced that the mortgages had been discharged,” ante, p 192, n 7, and that the “warranty deed from the [original seller] was recorded and the deed did not show outstanding mortgages.” Ante, p 205. No lawyer would rely on that as evidence of marketable title. A lender or purchaser would require that the mortgages be discharged of record. As one treatise writer said:

[T]he mortgagor may have been restored to his former ownership of the property with the mortgage lien discharged so far as substantive legal interest in the property is concerned. However, the mortgage may still be of record and, until it is discharged of record, the mortgagor’s former position in respect to his title to the land is not completely reestablished. [Osborne, Mortgages (2d ed), § 302, pp 624-625.]

While I agree that it is “uncontested that the property was free from encumbrance” (ante, p 206, n 33), the failure to discharge the mortgages of record meant that no one other than the bank, from whom the money was borrowed, and those who had seen the discharges delivered to Smereka by the bank, could be sure that this was so. For the rest of the world, the records in the office of the Register of Deeds showed that the mortgages were still an encumbrance on the property, and, therefore, “title [was not] completely reestablished.”

I do not contend, as the majority claims, that the obligation of the vendors to provide .clear title obligates the vendors to “fulfill the requirements of a third-party lender.” Ante, p 206. The vendor’s obligation under the land contract was to convey a marketable title, not to satisfy a lender. What constitutes a marketable title is a factual matter that depends on the judgment and opinions of persons qualified to express such an opinion. Generally, today, reliance is placed on the judgments and opinions of the title insurer. Obviously, its judgment and opinion are subject to review— the vendors are not obliged to produce anything that a third-party lender might require. In the instant case, however, the third-party lender required only delivery of a deed and the discharges. Indisputably, what it required *216was absolutely necessary to evidence the marketable title required by the contract.

The majority states that because the Flynns “were in default,” they were “thus ‘beyond the contract,’ Birznieks [v Cooper, 405 Mich 319, 329; 275 NW2d 221 (1979).]” (Emphasis added.) The words “beyond the contract” appear in the following paragraph:

A judgment for possession is, under the statute, subject to the redemption rights of the vendee or tenant. No agreement between the parties can deprive a vendee or tenant of his right to cure the default. The parties are beyond the contract. The vendee or tenant now exercises a statutory right, a right which can be diminished neither by the express nor the implied terms of the contract. [Id. at 329-330 (emphasis added).]

The majority, in so intimating that the silence of the statute, as distinguished from the language of the contract, governs whether there is any vendor obligation of simultaneous exchange of money and deed/ discharges, errs in hinting or suggesting that, because the Flynns were in default, the contract did not govern whether there is a vendor obligation of simultaneous exchange.

In stating that when the vendee is in default and the time for redemption is running, the parties are “beyond the contract,” Birznielcs, as the context expressly states, was saying only that the vendee’s statutory rights .of redemption cannot be diminished by the terms of the contract. Birznielcs did not state that the parties’ obligations, one to the other, to the extent not governed by the statute, do not remain in full force and effect while the time for redemption is running, although the vendee is in default.

In all events, all the vendee’s rights under the land contract would be reinstated instantly upon redemption, i.e., upon payment of the redemption money to the vendor. The moment the money is paid, all the obligations of the parties under the land contract would become fully enforceable, even if they were dormant during the period of default and while the time for redemption was running. Thus, this argument begs the question what were the vendor’s obligations upon payment of the redemption money.

*217In the instant case, the only obligation on the part of the vendor that remained to be discharged was the obligation to convey the property “upon” payment of the redemption money. Clearly, there is no time lapse between payment of the redemption money and restoration of all the vendee’s rights and obligations and all the vendor’s rights and obligations under the land contract.

MCL 600.5744(6); MSA 27A.5744(6), provides:

When the judgment for possession is for . . . nonpayment of moneys required to be paid under ... an executory contract for purchase of the premises, the writ of restitution shall not issue if, within the time provided, the amount as stated in the judgment, together with the taxed costs, is paid to the plaintiff ....

It is this Court’s responsibility to construe this language consistent with the legislative intent and common-law principles. The tender rule adopted by the majority ignores these concerns.

Smereka testified that he had obtained the discharges of mortgages from the bank that had been the mortgagee. He acknowledged that he had not recorded the discharges, although it was his responsibility to do so.

Korneffel left for the balance of the day, purportedly advising persons in his office that, if the Flynns should come by with a check, they should accept it.

Ante, p 189. In Kaiser, this Court quoted the trial court’s findings “ ‘that there were no competent proofs that the defendants herein or their agents or attorneys interfered with or prevented plaintiff or anyone in her behalf from securing a loan with which to pay the moneys due ....’” 301 Mich 612-613. (Emphasis added.)

In the instant case, Smereka and the Komeffels prevented the Flynns from obtaining disbursement of the loan proceeds of over $500,000 from the Lawyers Title escrow to the Komeffels by refusing to provide a deed and the discharges simultaneously in exchange for the redemption money.

It is the universal rule that a tender upon condition for which there is no foundation in the cont7'actual relation between the parties is ineffective, or as sometimes expressed, a tender must be without conditions to which the creditor can have a valid objection or which will be prejudicial to his rights. Thus, where there is nothing in the contractual relation between the parties to warrant it, an offer of the amount due on condition that a judgment shall be assigned renders the tender ineffectual as such. A tender of money which is not, at the time being, the debtors to tender, the property therein being in another, is conditional, and ineffectual to constitute a tender. But where the condition is one which the debtor has the right to insist on, a tender made subject to that condition is valid. Thus, when the performance of an act on the part of the creditor is to be precedent to or concurrent with the payment by *222the debtor, the latter may make his offer depend on the due performance of that condition. In some jurisdictions provisions to this effect are found in the statutes. [74 Am Jur 2d, Tender, § 24, pp 561-562 (emphasis added).]

The Arizona Court of Appeals said:

The wife urges that the tender was indeed conditional because it was accompanied by a demand for a quitclaim deed and because, had she accepted the $28,000 and signed a quitclaim deed, she would have had to vacate the residence. We reject her argument and reverse the ruling of the trial court.

A tender, to stop the running of interest on a judgment, must be unconditional. [Citations omitted.] A tender is not conditional, however, if the condition is one which the person making the tender has a legal right to insist upon. Plank v Arban, 241 So 2d 198 (Fla App, 1970); Jefferson Trust & Savings Bank v W Heller & Son, 296 111 App 447; 16 NE2d 433 (1938); Jacoby v Rosebrock, 117 Ind App 435; 70 NE2d 766 (1947); Woods v Dixon, 193 Or 681; 240 P2d 520 (1952); Ruscon Construction Co v Beaufor[t]-Jasper Water Authority, 259 SC 314; 191 SE2d 715 (1972). The requirement that the wife execute the deed and vacate the premises was part and parcel of the court’s decree. It was not some condition tacked on by the husband to gain some advantage or thing of value which he did not already have a right to by virtue of the court’s existing order. The tender was simply not conditional. [In re Mamage of Dull v Dull, 138 Ariz 357, 359; 674 P2d 911 (Ariz App, 1983) (emphasis added).]

The Arizona court’s opinion explains why conditions on which a party has a right to insist should not nullify tender. The general rule developed to prevent a party from extracting concessions from the other party. Where, as here, the “condition” is only what the vendee has “a right to by virtue of the” contract, the tender is “simply not conditional.”

In Marble v Butler, 249 Mich 276, 279; 228 NW 677 (1930), the vendee deposited the amount due the vendor, “together with a copy of the contract, the assignment from his parents of their interest in the contract, and a deed to be executed by [the vendor], with the clerk of the court.” The vendor had made it clear he would not accept tender and otherwise tried to frustrate redemption. The Court ruled that the vendee’s actions were an adequate substitute tender although the vendee had also submitted to the court a deed for the vendor to sign, in exchange for the redemption money.

In the instant case, the Flynns could not deposit the money in court with a deed to be signed by the Komeffels because Lawyers Title was not authorized to release the money from escrow until it received a deed and the discharges.

Ante, p 202.

Excepting the self-serving view of Smereka, who knew that his clients, the Korneffels, hoped that the Flynns would not redeem.

See n 10.

Except encumbrances not created by the original seller or the Komeffels.