Akerly v. Vilas
23 Wis. 207
Wis.
1868
Check Treatment
DixoN, C. J.

Tbe question of the breach of the covenant for quiet ewjoyment by the prosecution by the plaintiff of the action in the district court of the United States to set aside the deed, and by his defense in the partition suit, and the question of the equities of the defendant Vilas, growing out of the same prosecution and defense, to reduce or extinguish the demand of the plaintiff, are wholly untouched by the former decisions of this court. This will appear from an examination of those decisions as reported in 15 Wis. 401, and 21 Wis. 88. To say nothing, therefore, of the rights of the defendant arising from the refusal to deliver the certificates of stock in the land companies, which is the point upon which I dissented from the last decision, and on which, as it seems to me, that decision directly conflicts with the first, we have these two questions still open and undeeided; and since with regard to them the court have come to a unanimous conclusion favorable to the defendant, it will become unnecessary for us to consider any of the other questions argued in the case. On these two we are of opinion that the answer states valid grounds of defense, in support of which the evidence offered by the defendant should have been received.

Of the authorities cited by the learned counsel for the plaintiff, on the first question, it is only necessary to observe, that none of them were cases involving the question here presented. They were all cases where suits had been brought or title claimed by a third person, or one not bound by the covenants of the deed. They are not, therefore, evidence of what the opinion of the court was, or would have been, of the question here involved, had the same been presented ; and the general remarks of the court, quoted by counsel, are, by a familiar rule in the interpretation of judicial decisions, not to be applied beyond the facts of the case in which they are made, unless the new case, though varying somewhat in its facts, clearly authorizes such application. It is undoubtedly true that no action *222will lie for a breach of tbe covenant for quiet enjoyment, where the title is claimed or suit commenced against the covenantee hy a stranger to the deed, without alleging and proving an actual eviction or ouster. The covenant is not understood to protect the grantee against every such claim or suit, however unfounded, and for which the covenantor is in no way responsible. In such case, it is only upon a lawful eviction or ouster, on a valid title existing before or at the date of the covenant, that the grantee has his remedy for the breach; and to this effect merely are the authorities cited. Rut in this case the question is, whether a suit to avoid the deed and regain possession of the land, commenced by the covenantor himself , with “ no reasonable or probable cause of action,” as alleged in the answer, and prosecuted “ willfully, wrongfully and maliciously,” to the great pecuniary damage and loss of the covenantee, is a breach of the covenant. We are satisfied that it is, and that the distinction between such a suit, as constituting a breach, and suits by third persons, is both on reason and authority precisely that claimed by the learned counsel for the defendant. And on this point we are content to leave the question where the argument of counsel leaves it, merely adding that we feel obliged, when, by the research and learning of counsel, in the examination of a question of such intricacy and importance, we are relieved from the labor of entering upon the investigation for ourselves.

And the same observation may be made of the other question. The equities of the defendant, growing out of the wrongful prosecution of the action in the district court, and of the defense in the partition suit, are placed in so clear a light by the argument, that they cannot be made clearer by us. It seems impossible, on the facts stated, that a purchaser may be thus wantonly harassed and vexed by his grantor, his title disturbed and rencl-ered worthless, and all profits and advantages of his purchase lost; and yet, when sued by the grantor in a court of equity for *223the purchase money, he should have no remedy for the injuries he has sustained. We do not think this can be so, but on the contrary, by the general principles governing the court, that the defense in this respect is good. He who asks equity must. do equity. Any conduct on the part of the plaintiff, with regard to the subject of the action, which was inequitable or unjust toward the defendant, and resulted in actual damage to him, and especially when such damage was caused vexatiously or intentionally by the plaintiff, may always be shown as matter of defense in a court of equity.

On the question of the position of the defendant here being inconsistent with that occupied by him in the former suits, it is obvious, with respect to these defenses that it is not so. His title was then disputed, and he was charged with fraud. He insisted that he had good title, and denied the fraud. The plaintiff, by his voluntary discontinuance of the action to. rescind, confessed that it was unfounded, or prosecuted without probable cause. At least it would be so held in an action for malicious prosecution. See Burhans v. Brown, 19 Wend. 417, and cases cited. The plaintiff, then, by the discontinuance of his former action and the commencement of this, has in fact changed his position, while the defendant, with respect to the questions we are considering, has not. The defendant alleges that in the prosecution and defense by the plaintiff, of the actions in which his (defendant’s) title was denied, but which he then insisted upon, and which the plaintiff has since confessed that he had, the plaintiff was guilty of a breach of Ms covenant for quiet enjoyment, and caused damages to the defendant, which, in the judgment of a court of equity, ought to be deducted from the demand of the plaintiff for .the purchase money. In this there is eertainly no inconsistency on the part of the defendant.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.