In this appeal, which is from a decree in the trial court granting specific performance to plaintiffs, Mr. Justice SHARPE has written for reversal. I am unable to agree with that result.
Plaintiffs purchased the real property involved in this suit on a land contract in which the Highland *Page 721 Park State Bank was the vendor. The contract is lengthy, contains a great variety of provisions for the protection of the vendor and the body of it is printed in comparatively small type. It is a fair inference from the record that this contract was prepared by or at least furnished by the bank. Therefore any uncertainty or ambiguity in the terms of the contract should be most strongly construed against the bank as vendor. In that particular any assignee of the bank's interest or any mortgagee possessed of a mortgage encumbrance given by the bank or bank's assignee should be held to be in the same position — i.e., the terms of the contract as against any of such parties should be construed favorably to the contract vendees.
The contract is divided into four subdivisions and the fourth subdivision consists of paragraphs designated (a) to (j) inclusive. Decision of the instant appeal turns upon the construction to be given to paragraphs (a) and (h). They read:
"(a) That the bank or its assigns may at any time encumber said land by mortgage or mortgages to secure not more than the balance owing hereon at the time such mortgage is executed nor more than 50 per cent. of the purchase money paid and to be paid under this contract, which mortgage or mortgages shall be a first lien upon the land superior to the rights of the purchaser therein, provided notice of the execution of such mortgage shall be sent to the purchaser by registered mail after execution thereof and the purchaser will on demand execute any instrument demanded of the bank or its assigns reasonably necessary or requisite to execute or confirm the execution of the foregoing power."
"(h) That the bank at its option may convert this land contract into a mortgage whenever the principal due hereunder has been reduced in an *Page 722 amount satisfactory to the bank and the purchaser or any assignee of the purchaser agrees to accept a deed in fulfillment of the land contract and to execute a mortgage on the bank's standard mortgage form for the unpaid balance owing on said contract, payable at the same time or times, and at the same rate of interest as provided by said contract, and on like terms and conditions as set forth in said contract."
These two paragraphs should be construed together and in the light of all the terms of the original land contract, with notice of which as to plaintiffs' rights thereunder the defendants herein are chargeable. If for no other reason, such notice of plaintiffs' rights arises from the fact that they have been in possession of the property since the inception of the contract.
The land contract provided that the unpaid portion of the purchase price was to be paid as follows: "all of which purchase money and interest shall be paid in instalments of not less than $54 each, payable March 26, 1938, next and not less than the last-named sum monthly thereafter; said payments to be applied first upon interest and the balance on principal. Provided the entire purchase money and interest shall be fully paid within 10 years from the date hereof, anything herein to the contrarynotwithstanding." Under the foregoing provision the purchasers had the right to pay the contract in full at any time a monthly payment fell due. But the mortgage held by the defendant insurance company by its terms is not payable in full within 10 years after the date of the contract; nor under its express terms could plaintiffs pay this mortgage of $2,874.57 with interest at 6 per cent. per annum upon their property at a rate in excess of $54 per month. In other words by the literal terms of the mortgage plaintiffs were prevented from paying for their property as expeditiously as they had the right *Page 723 to do under the terms of their land contract, of which defendants herein had notice.
Not only should the contract in suit be construed favorably to plaintiffs, for the reason hereinbefore indicated, but the contract should be read as a whole. Both provisions as to the right of the vendor to convert the status of the contract vendor into the status of a mortgagee are in part 4 of the contract. Paragraph (a) of this part 4 of the contract should not be read and construed wholly apart from the other provisions of part 4, particularly the paragraph designated (h). In this latter paragraph it is expressly provided that a mortgage placed on the property by the vendor should be "payable at the same time or times, and at the same rate of interest as provided by said contract, and on like terms and conditions as set forth in said contract." The Lanphar Company is not only the assignee of the bank as contract vendor, but it is also grantee of the bank's title; and thereafter the bank could not exercise any right under (h). But the Lanphar Company could and did in effect exercise the rights provided in (h). The mortgage held by the defendant insurance company violates plaintiffs' rights under the above-quoted portion of the land contract, and the mortgage is also violative of plaintiffs' rights under the provision of the contract wherein it is stated: "Provided the entire purchase money and interest shall be fully paid within 10 years from the date hereof, anything herein to the contrary notwithstanding." The contract was to be paid in full by February, 1948; but the mortgage cannot be paid in full until June, 1949.
The land contract read as a whole clearly gives the vendees the right to pay the purchase price as expeditiously as they may desire. As noted, they are deprived of that right under the terms of the mortgage. Such a result can be sustained only by *Page 724 lifting out of the contract a limited portion of paragraph (a) of part 4 and disregarding other plain provisions above quoted from paragraph (h) of part 4 of the contract. To so construe the contract would be in violation of the vendees' rights of which defendants are chargeable with notice. Such a construction of the contract pursued to its logical conclusion would, as the circuit judge pointed out, lead to strange and unjust results such as follows: "If the defendants' contention is correct, this mortgage could have read at the rate of $25 per month at 7 per cent. interest and to be paid within 10 years or even 25 years, or a mortgage could have been placed payable at the rate of $100 per month at seven per cent. interest, to be paid within 6 months or 30 days." It would be a strained and unduly harsh construction of the conflicting provisions of this land contract so to hold. The trial court was correct in decreeing that plaintiffs "have the right upon payment to said defendants (defendant life insurance company) of the amount owing on said mortgage to receive from defendants a full, complete and valid discharge of the same."
It is admitted in the record that on July 14, 1944, plaintiffs tendered to defendant Melvin F. Lanphar Company $2,892.53 as payment in full of the then unpaid portion of the land contract. No complaint is made because of the tender having been made to the Lanphar Company instead of to the mortgagee, the life insurance company. And by stipulation of counsel it is further admitted: "Thereafter plaintiffs have been ready, willing and able to pay said sum at any time but defendants have refused and continue to refuse to accept such payment or to execute said deed." We are not in accord with appellants' contention that the trial court erred in holding that the above tender made by plaintiffs *Page 725 was, under the circumstances of this case, sufficient to stop subsequent accrual of interest. In the light of the stipulation it is obvious that it would have been an idle ceremony for plaintiffs to have deposited in court the amount tendered because "defendants have refused and continue to refuse to accept such payment." Defendants have no right by refusing payment tendered of the unpaid contract purchase price to compel plaintiffs to continue to pay interest thereon, even though plaintiffs were occupying the purchased premises.
The decree entered in the circuit court is affirmed, with costs to appellees.
STARR, C.J., and CARR, BUTZEL, BUSHNELL, BOYLES, and REID, JJ., concurred with NORTH, J.
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