95 Wis. 95 | Wis. | 1897
Lead Opinion
The following opinion was filed Hovember 24, 1896:
The first question in order in the discussion of this case is, "Was the contract between Jacob Raff, deceased, and Henry Paulus so far executed as to render it enforceable in equity ?
It does not appear that there is any controversy respecting what the contract was in fact. The only objection raised to its enforcement appears to be that it was indefinite in respect to the time of payment for the land. The price per acre was agreed upon. The vendee was put in possession of the premises, and he continued in such possession from the making of the contract, in 1884 or 1885, down to the 6om-mencement of this action. In the meantime he made improvements and paid half the purchase money.
Ho time being specified for payment of the purchase money, it was payable on demand. Therefore there was no element of uncertainty in that. The rule is that part payment of the purchase money, and delivery of possession of one of the parcels of land included in the parol contract, are sufficient to enable the purchaser to enforce specific performance as to all the parcels. Jones v. Pease, 21 Wis. 645; Dist. No. 3 v. Macloon, 4 Wis. 79; Brandeis v. Neustadtl, 13 Wis. 142; Doctor v. Hellberg, 65 Wis. 415. It follows that the conclusion of the trial court on this branch of the case cannot be disturbed.
Paulus being the equitable owner of the land, the judg
The trial court found that Lemke purchased and paid for the forty acres without notice that Paulus had any interest therein, and in good faith believing that the land belonged to Paff; therefore, that he took title thereto under the Paff deed, discharged from the lien of the judgment. The findings of fact, in that regard, appear to be sustained by the evidence. Therefore the conclusion of law based thereon followed as a matter of course.
The important question to be determined is whether Paff is responsible or not for the purchase money paid to him by Lemke and turned over to Paulus. So far, at least, as the purchase money had been paid to Paff on his contract with Paulus, he held the title to the land as trustee for those beneficially interested, first as trustee for Meier, who was entitled to first lien thereon under his judgment, then for Paulus, the equitable owner, subject to such judgment. Winslow v. Growell, 32 Mis. 639; Church v. Smith, 39 Mis. 492. If actual notice of the existence of the judgment had been brought home to Paff prior to the conveyance to Lemke, the relation between him and the judgment creditor would have been precisely the same as in Church v. Smith, though created in a somewhat different manner. There this court held that the cestui que trust had such an interest in the land that he was entitled to come into a court of equity and enforce the execution of the trust.
Such is really the nature of this action as between plaintiff and Paff. It was to enforce a trust, or, if the trust could not be enforced, by reason of a violation of duty on the part of the trustee, then for damages for such violation, and it was and is governed by the law respecting that subject. The damages, if any, for which Paff was liable to plaintiff,
If the proceedings had been instituted against Paff to charge him as trustee, while he retained the fund in his hands, obviously he would have been liable to account for it; and if it were found that, with notice of the existence of the judgment, he parted with the fund, he would have been liable to respond in damages as for a breach of trust. 2 Pom-eroy, Eq. Jur. § 1058; Lathrop v. Bampton, 31 Cal. 17; 2 Story, Eq. Jur. § 1232.
The difficulty in this case grows out of the fact that Paff did not know of the judgment lien when the transaction with Lemplce took place. The judgment had been docketed, but that fact was not known to Paff, and the court expressly acquits him of participation in any fraudulent scheme to defeat the collection of the judgment; hence, there is no principle of law upon which he can be held liable in damages for a breach of trust, unless the law is that one so circumstanced is required, before paying the money received from the vendee to the equitable owner, to examine the records and to investigate respecting whether there is any lien upon the land or not.
No duty can exist without knowledge of the facts, or knowledge sufficient, at least, to put one on inquiry which will lead to a discovery of the facts, upon which such duty rests. The rule respecting the subject is laid down with clear
We may safely venture the assertion that no authority can be found anywhere to charge a person as trustee of a fund after he has parted with it, or to hold him personally liable in damages for a breach of trust, without bringing home to him knowledge of the existence of the trust relation to which he is a party, before the alleged breach.
The question under consideration was expressly decided in Cook v. Dillon, 9 Iowa, 401, 14 Am. Dec. 354, in the following language, in substance: Money that comes into the hands of a trustee under such circumstances is subject to the lien of the judgment, and such lien is enforceable in equity; but, if the money is paid over without knowledge of the lien, the trustee will not have to account for it again, or to be under any liability therefor. It is not his duty to search- and make inquiry respecting the existence of such lien, but it devolves upon the person holding the lien to give notice of and enforce it.
Applying the foregoing to this case, the judgment against
As it appears from the record that Paff made no defense in the court below to the enforcement of the contract between him and Paulus, so as to render the judgment an effectual lien upon the remaining land, the judgment against him for costs, as well as for the damages, must be reversed, and judgment be entered in the court below in his favor for costs.
By the Court.— On the appeal of William A. Paff.\ as executor, etc., the judgment of the court below, for $500 and costs, is reversed; and on the appeal of G. D. Bartz, receiver, the judgment of the court below in favor of Hermmi Lemke is affirmed. The cause is remanded, with directions to render judgment in accordance with this opinion, in favor ■of William A. Paff.\ as executor, against G. I). Bartz, receiver, for costs to be taxed according to law. Costs are awarded against the receiver, in this court, on both appeals.
Rehearing
I concur in the reversal, but not in the reasons given therefor, or the mandate of the court. It
Our statute declares that “ every such judgment, when so docketed, shall, for a period expiring ten years from the date of the rendition thereof, be a lien on the real property in the county where the same is docketed, except the homestead,” etc., of “ every person against whom such judgment shall be rendered and docketed, and which he may have at the time of docketing thereof in the county in which such real estate is situated, or which he shall acquire at any time thereafter within said period of ten years.” Sec. 2902, R. S.; Moore v. Smead, 89 Wis. 567. The statute also declares that “ the word ‘ land ’ or ‘ lands,’ and the words ‘ real estate’ and ‘real property,’ shall be construed to include lands, tenements and hereditaments, and all rights thereto, and interests therein.” Subd. 9, sec. 4971, S. & B. Ann. Stats. The statute thus making the judgment a lien uses substantially the same language as the statute giving a mechanic’s lien. Sec. 3314, R. S. Paulus, being thus in possession of the seventy acres at the time of the rendition and docketing of the judgment against him, and having previously made valuable improvements thereon and paid one half of the purchase price and interest, as mentioned, thereby became the legal owner of a substantial interest in the land, whereby he, or any one succeeding to his interest in the land, might have compelled Paff to specifically convey the remaining title upon payment of the unpaid purchase price. That such specific performance might have been enforced is conceded in the opinion filed, and authorities are there cited in support of the proposition. See, also, McWhinne v. Martin, 77 Wis. 182; Wall v. M., St. P. & S. S. M. R. Co. 86 Wis. 57, 58, and cases there cited. The reason for the rule is that
The question recurs whether, under our statutes, the judgment so docketed became a lien upon such interest of Paulus in the land. The opinion filed seems to go upon the theory that the title to the land was wholly in Paff, who held the same in trust for Paulus and those rightfully claiming under him, and that Paulus had a mere equitable interest in the land, to which the judgment did not attach as a lien, and which could be enforced only against those having actual knowledge, not only of the existence of the judgment, but that it had been docketed.
Upon that theory, it is difficult to perceive why actual knowledge of the rendition of the judgment should be less potential in equity than actual knowledge of such docketing. While the relation of vendor and vendee may be as indicated where the contract is purely executory and no provision is made as to the time when the title shall pass, and hence where the vendor is actually or presumptively in the possession of the land, yet, in my judgment, it has no application to the facts found in the case at bar. 28 Am. & Eng. Ency. of Law, 105-122. As indicated, the principles of law governing this case are those applicable to a case where the vendee has for several years been in the actual possession, made valuable improvements, and paid a considerable portion 'of the purchase price. The rule is elementary that “ If the vendee is in possession, he is treated as owner of the property. He may mortgage it, or create an easement upon it. The estates or rights thus created are complete as against himself, but are liable to be defeated by the assertion of the vendor’s rights, if they have been infringed upon.” 28 Am. & Eng. Ency. of Law, 122, and cases there cited.
This court has repeatedly sanctioned the principles thus stated. Van Camp v. Peerenboom, 14 Wis. 65; Bates v. Campbell, 25 Wis. 613; Coe v. Manseau, 62 Wis. 81; Lillie v. Dunbar, 62 Wis. 198; Galloway v. Hamilton, 68 Wis. 651. See, also, Noyes v. Hall, 97 U. S. 34; Floyd v. Harding, 28 Grat. 401; Jackson v. Scott, 18 Johns. 94; Jackson v. Parker, 9 Cow. 73; Rand v. Garner, 75 Iowa, 311; Pugh v. Good, 3 Watts & S. 56; S. C. 37 Am. Dec. 534. Thus, in Van Camp v. Peerenboom, supra, it was held, in effect, that where a person, having a contract for the purchase of land under which he had gone into possession, conveyed the land by warranty deed, with covenant of seisin, his grantee acquired an interest in the land which was subject to the lien of a judgment
The judgment in the case at bar was, under our statute, a lien at law upon Paulus’ interest and right to the seventy acres, subject only to the payment of the balance of the purchase money, which, as found, was less than $500. Lemke, as a Iona fide purchaser, was held to have obtained title to the forty, relieved of the lien, because the possession of
A motion by the plaintiff to correct the judgment so as to make the same payable out of the funds in the hands of G. D. Ba/rtz as receiver was granted January 12, 1897.
A motion by the plaintiff for a rehearing was denied February 2, 1897.