21 Wis. 88 | Wis. | 1866
Lead Opinion
These are cross appeals from the same judg. ment. Aherly brought his suit to foreclose a mortgage given by the defendant Vilas to secure three bonds conditioned for the payment of $13,000, which is the purchase money for certain lands in Prairie du Chien, and in Grant and Green counties.
The first question for our consideration is: Has Vilas the right to rescind the contract for the purchase of these lands ?
The title to the lands was in Louisa S. Lord, wife of Frederick ~W. Lord, and Jay Camiah Aherly. A part of the lands, at Prairie du Ghien had been conveyed to the trustees of Prairie du Ghien Land Companies No. 1 and No. 2, and was represented by 100 shares of Go. No. 1 and 150 shares of the stock of Co. No. 2, held and owned by Aherly and Mrs. Lord. A conveyance, being a full covenant deed of the lands at Prairie du Ghien, was 'executed to Vilas by Aherly and Mrs. Lord, acting by Mr. Lord as their attorney in fact, in which Mr. Lord joined, bearing date September 4th, 1855; and in this deed, after conveying certain lands described by lots and blocks, they assign the 250 shares of stock, and transfer or convey all the lots, blocks, stock and property of every
Akerly filed his bill in the United States district court for the district of Wisconsin to rescind the sale and set aside the deed ; and Vilas, in November, 1856, answered that bill, admitted that he had taken possession of the lands conveyed to him, and averred that he had sent the first year’s interest on he bonds to the American Exchange Bank (where it was made payable), at or before the time it became due, and that it remained there still for Mrs. Lord and Akerly, unless they had received it. He denied all fraud, and maintained the validity of the transaction.
Vilas states in Ms testimony, that in January, March, May and June, 1856, and subsequently, he sold and conveyed portions of the lands, and received about $4,500 for those sold; also, that he leased and received rent for a part after that time, and has never been disturbed in his possession; that up to
At the November term, 1856, the trustees of Land Go. No. 2 commenced a suit in the Crawford circuit court for the partition of the lands held by them as trustees. To this action Vilas was a defendant, and set up his claim as owner of the land and of the certificates of shares in the land companies assigned to him by the deed from Alcerly and Mrs. Lord. Akerly also was defendant, and filed an answer, which was struck off; and he filed another, in which he claimed the land, and set up the pendency of the suit in the United States court to rescind the sale and cancel the deed: At the June term, 1859, Akerly withdrew his answer, and he had previously discontinued the suit in the United States court; and soon thereafter he commenced this action to foreclose the mortgage executed to him and Mrs. Lord to secure the purchase money of the bonds, and avers that Mrs. Lord has assigned her interest in the bonds and mortgage to him.
It is obvious from these statements that to rescind the contract at this time, or grant any relief equivalent to to it, would violate nearly every principle which courts of equity have long acted on in such cases. If Vilas ever had the right to rescind, he certainly had a knowledge of all the facts which would entitle him to a rescission when he defended the suit of Akerly in the United States court; when he sold at divers times portions of the lands conveyed to him ; when he paid or offered to pay the interest on the bonds; and when he maintained his title in opposition to the claim of Akerly in the partition suit. Either one of these acts, it appears to us, was a ratification of the contract. The delay of several years to tender back a deed of the lands conveyed to him, and to seek, himself, a rescission, is alone conclusive against his claim to rescind.
2. Does the defendant, in the first defense in his answer, state facts constituting an entire or partial defense to the action ? He sets up the agreement respecting the conveyance of the Grant and Green county lands and the delivery of the certificates of stock, and avers the non-conveyance of the lands and the non-delivery of the stock. He sets out also the prosecution of the suit in the United States court, and the defense of the partition suit, by AJcerly. Lord, in his agreement with Vi-las, stipulated that if the Grant and Green county lands were not conveyed by the first of October, 1855, “he would pay to said Vilas, on his demand therefor, the fall cash value of the same as fixed and settled damages, to he paid to said Vilas or deducted from the first payment on the bonds.” It appears from this that the non-conveyance of the Grant and Green county lands was not only not to be any cause for rescinding the contract, but that in case of failure, by the first of October, to deliver the deed conveying them, the defendant had a right after that to refuse the deed, and insist on their value being paid to him or deducted from the first payment on the bonds. These lands are a part of the consideration of the bonds and mortgage, and it is but equitable that their value, whatever it may be, should be deducted from the plaintiff’s claim; and to this extent there is a failure of consideration, and the defense is good.
8. Is the defendant entitled to any relief in this action by reason of the non-delivery of the certificates of stock in the land companies ? It was urged upon the argument that the certificates and their delivery were a part of the consideration of the bonds and mortgage. But we hardly think this position tenable, after the execution and delivery of the deed to Vilas
4. The next question is: Was the defendant rightly compelled to elect which of the defenses set up in his answer he would rely upon? Were the defenses in fact inconsistent ? We are unable to find in the first defense set out in the answer, averments of facts showing that either the deed to Vilas or the mortgage to Alcerly and Mrs. Lord were delivered conditionally, or averments showing that either of these instruments is not valid and in force. The words “ conditional sale ” are used in the first defense and applied -to the transaction, but the facts
5. We will next consider whether the first counter-claim of the defendant is good and well pleaded. It sets out, inter alia, the deed of the lands to Vilas, including the covenants therein, and avers breaches of the covenants. Can we take into consideration this cause of action in this case, and allow the defendant to recover thereon ?
Before the code it was well settled, that in suits brought to foreclose mortgages for the purchase money, in which the mortgagor, being in possession of the lands, set up a partial failure of title as a defense, without averring an actual eviction or an action of ejectment brought, or that he was in any way disturbed in his possession, the court would not interfere, but leave him to his action at law. Van Wagoner v. McEwer, 1 Green Ch. Rep., 412; Abbott v. Allen, 1 Johns. Ch., 213; Pratt v. Gilchrist, 1 Sandf., S. C., 118; Simpson v. Hawkins, 1 Dana, 305; Rawle on Cov. for Tit. (3d ed.), 676 to 686. Courts of equity declined to go into such defenses, because title to lands could better be tried in actions at law, and the damages were often unliqui-dated and not the subject of set-off; and also because the possession of the defendant, being undisturbed, might ripen into a perfect title. But the code allows a counter-claim to be set up in an answer to a foreclosure action, as well as in others. It is no objection to such counter-claim or claims, that the dam
Can the defendant set up the breach of the covenants in the deed as a counter-claim without making Mrs., Lord, who is jointly liable on the covenants (inasmuch as these are covenants made by her on conveying her separate property), a party? If the defendant Vilas bad brought a separate action on the covenants in the deed to him, be must have made all the grant-tors, who were liable on the covenants, or the survivors, parties; or advantage of the want of parties might have been taken by demurrer or answer. But if not so objected to, the defect would have been waived. The same holds true as to a counterclaim. Schubert v. Harteau, 34 Barb., 449; Briggs v. Briggs, 20 Barb., 447; Cummings v. Morris, 25 N. Y., 625. There being no objection in the replication of the plaintiff because Mrs. Lord is not before the court, we must bold the first counter-claim, so far as it sets out a cause of action on the covenants, good. It follows that the circuit court erred in compelling the defendant to elect which of the defenses set up in his answer be would go to trial on, and in striking out the first counter-claim.
6. Can the defense of malicious prosecution, or slander of title, be set up as a counter-claim in this action ? If so, it is because it is allowed by the first subdivision of section 11,
Is the claim for damages for the alleged malicious prosecution, or slander of title, a cause of action arising out of the bonds and mortgage set out in the complaint ? Clearly not. If the slander of title constitutes a cause of action at all, it arises out of Akerly's suit in the United States court, or out of the partition suit, or Akerly's pleadings or proceedings in those suits. It arises out of a torongful act or acts, and not out of the contract set out in the complaint. Is it connected with the subject of the action ? How is it connected with the mortgage ? It is based upon and directly connected with the alleged wrongful acts of Akerly in the former suits. Those suits and acts were connected with the deed to Vilas, and the deed with the bond and mortgage. Thus the slander of title, or malicious prosecution, is indirectly or remotely connected, if at all, with the subject of the action. We are of opinion that a cause of action set out in a counter-claim is, within the meaning of the statute, connected with the subject matter of the plaintiff’s action, only when it is directly connected ; or so connected that a cross bill would have been sustained, or recoupment allowed, under the former practice. This excludes the counter-claims setting up slander of title, or malicious prosecution.
On the appeal of Akerly, the judgment of the circuit court must be reversed, with costs, and the cause remanded for further proceedings. If the appeal of Vilas had been heard by itself, the judgment would have been affirmed; for it is not, on the whole, to his prejudice or injury. But as the judgment must be reversed on the appeal of Akerly, and as there was error in entering the order compelling Vilas to elect which of
By the Oourt. — Ordered accordingly.
Rehearing
Both parties moved for a rebearing.
The counsel for the defendant Vilas contends in his argument on the motions for a rehearing, that the plaintiff, by replying to the counter-claims in the answer, waived all objections thereto. It is not necessary for us to decide what the effect of the replication, followed by a trial of the issue thus formed, and a judgment thereon, would have been; for we are of opinion that if, within a reasonable time after the remittitur is transmitted to the circuit court, the plaintiff shall there move for leave to withdraw the replication to so much of the answer as sets up the counter-claims not authorized by the statute, and to demur to such counter-claims, the circuit court ought to grant the motion.
By the Court.- — The motions for a rehearing are each overruled.