26 Minn. 165 | Minn. | 1879
This is an action upon a promissory note for :'$>3,452.08, executed to plaintiff by defendants. So far as important for the purposes of this opinion, the facts out of which the note arose are as follows:
On October 2, 1871, Butler Comstock represented to defendants that he and plaintiff were owners of certain large tracts of pine lands in Wisconsin. Defendants relying upon this representation, a written contract was, on that day, entered into by and between them of the second part, and plaintiff of the first part, whereby the latter, for a considera
It appears that at the date of the execution of the first contract, (October 2, 1871,) the plaintiff and Butler Comstock were the owners in fee of all the lands described therein, except certain school lands, and a forty-acre tract in section 20. At the time of the execution of the supplemental contract and of the note in suit, the forty-acre tract was owned in fee by defendants, and the parties of the first part to said contract had no interest therein or in the timber thereon, and such transfer did not enter into the estimate of standing timber made by the parties at the time of making the supplemental contract. The school-section lands were held by plaintiff and Butler Comstock, under certificates of sale issued to them by the state of Wisconsin, under the laws of that state regulating the sale of school and university lands, and only a part of the purchase-money of the same had been paid, and no patent has been issued for any part thereof. By the laws of Wisconsin, it is provided that “the title or fee” of all school and university lands shall remain in the state until patents- shall issue therefor, and that no certificate of sale shall be deemed to confer upon the purchaser of such lands, or any person claiming under him, the right to cut down, destroy or carry off from the same any wood or timber stand-^ ing or growing thereon, without the consent of the commissioners. With the exception of an eighty-acre tract, all the other lands mentioned in the original and supplemental contracts — the same being situate in Douglas county, Wisconsin — had been sold to said county for delinquent taxes, as follows: A part was sold on September 5, 1871, and certificates of sale bearing that date were issued to Douglas county. These certificates were, on January 13, 1874, assigned to one ■Chalmers. On December 8, 1874, no- redemption of said
It appears that the amount of pine timber on the eighty-acre tract before mentioned (the title of which remained in the plaintiff and Butler Comstock, or his heirs or assigns,) was, according to the estimate made by the parties to the supplemental contract, at the time of the execution thereof, 400,000 feet, of the value of $1,000, at the price at which the sale was made. It further appears that at the time of the
The referee by whom this case was tried below finds three ■conclusions of law, which are in substance as follows: First, that the plaintiff and “his associates,” at the time of making the supplemental contract, had a good title to the eighty-acre tract, and a right to sell the timber thereon; second, that there was a valid consideration for the note in suit, to the extent of $1,000; third* that plaintiff is entitled to judgment for the full amount of the principal and interest of said note. Judgment was entered accordingly, and the defendants appeal. It is to be inferred (and there appears to be no dispute as to the fact) that the referee found that there was a valid consideration for the note to the extent of $1,000, upon the basis that, according to the estimate of the parties, that was the value of the timber upon the eighty-acre tract, being the only parcel •of the lands to which the plaintiff and those interested with him had a perfect title. Upon what ground the referee concluded that the plaintiff was entitled to recover the entire principal and interest of the note, does not appear. We are ■of opinion that this conclusion was correct, upon the grounds following: Granting that the consideration of the note is ■ apportionable, and assuming that a partial failure of the consideration of a promissory note is available as a defence in this state, if it appeared that the whole of the consideration had failed, except that part of it which consisted in the right to cut and remove the timber upon the eighty-acre tract, and that such part was, proportionably to'the whole consideration, ■of the value of $1,000 only, it would have been proper for the referee to have found that the plaintiff was entitled to recover, on the note in suit, $1,000 and interest only.
It is contended, on behalf of the plaintiff, that this would not be so, because a partial failure of the consideration of a note cannot be set up as a defence; but as it is not necessary
But it does not appear that the right to cut and remove the timber from the eighty-acre tract — the value of which, as estimated by the parties, is found to be f 1,000 — was the only part of the consideration of the note which had not failed. As to the school land, the defendants acquired the right to cut and remove the timber thereon, in whole or in part, provided the commissioners would consent. It is not found that ■ such consent was refused; in fact, it is not found that it was not given, and advantage taken of it by defendants. The privilege of cutting and removing timber, with the consent of the commissioners, was a part of the consideration of the note, and presumably valuable.
With regard to the lands sold for taxes to Douglas county, it is to be observed that until a tax title is acquired through the execution of a deed, it is only, so far as appears, while the county remains the owner and holder of the certificate, that it is made unlawful to cut and remove timber from lands sold for taxes. The certificate which was dated on September 5, 1871, was assigned to Chalmers, January 13, 1874. That which was dated September 3, 1872, was also assigned, January 13, 1874. By the laws of Wisconsin, the owner or-occupant of any lands sold for taxes may redeem tie same at any time within three years from the date of the certificate of sale. As respects the first certificate, Chalmers held it for-about eight months before the expiration of the period of redemption, and, according to the finding of the referee, it would seem that Chalmers did not become owner of the-land embraced in the certificate, and the timber thereon, until he received this tax deed, some three months later. As to the second certificate, Chalmers held it for nearly twenty months before the expiration of the period of redemption, and - the tax deed was not issued to him until, some eight months later. With regard to the lands covered
If the defendants claimed a partial failure of the consideration of the note, the burden was upon them to show to what extent — that is, to what value — it had failed. This is so, because the note was presumptively founded upon a valuable and sufficient consideration. Now, while it appears that to the extent of the timber on the eighty-acre tract, of the estimated value of $1,000, the note was founded upon a valid consideration, it does not appear what the proportionate value of the rights and privileges above referred to, in relation to the school lands and the lands sold for taxes, was, nor to what proportionate extent the defendants were damaged by the fact that they were not able to avail themselves of the full extent of the permit given by plaintiff and those with him-, for. the