Blakeslee v. Starring
34 Wis. 538
Wis.
1874
Check Treatment
Cole, J.

It is argued, in support of the demurrer, that the *540plaintiff failed to perform tbe contract with the railroad company according to its stipulations, and had therefore forefeited all rights under the agreement. The conclusive answer to this objection is, that it does not lie in the mouth of the defendant Starring to raise it. That is a matter between the railroad company and the plaintiff, and does not concern Starring, who has assigned and transferred the contract. The complaint alleges that he had assigned the land contract to the plaintiff for a valuable consideration, and that he afterwards obtained the title to the real estate from the railroad company by falsely representing that he had never parted with his interest in the land, and had lost or mislaid the agreement. That this was perpetrating a gross fraud upon the rights of the plaintiff, is a proposition which seems to us too plain for argument. For, how can it'be claimed that his conduct in obtaining the title to the land under the circumstances set forth in the complaint was fair, just and honorable? He had parted with all interest in the contract, and what right had he afterwards to apply for and receive the deed from the railroad company of land which belonged to his assignee ? It is no answer to say that time was of the essence of the contract, and that the company reserved to itself the right to declare it void in case the 'vendee, or the party claiming through him, should fail to make payments punctually as they became due. This is not an application for a specific performance of the contract, against the railroad company. If it were, a consideration of the rights of the plaintiff under the contract, and whether it had been declared forfeited by the company, would be proper. But this is an action to compel Starring to convey the land, the title to which, according to the facts stated, he fraudulently obtained from the company, to the plaintiff, upon such terms as the court may deem equitable and just. We are clearly of the opinion that the plaintiff is entitled to that relief upon the case presented. It is said that Starring never made any contract whatever to deed the land in question to the plaintiff. But suppose he did not, *541yet, if be bas obtained tbe title from the company in fraud of plaintiff’s rights, be bolds it as trustee for the plaintiff. And upon every principle of equity and fair dealing, he ought to be compelled to convey the property to the plaintiff, upon suCh terms as the court may, in view of all the facts as disclosed on the trial, deem just.

By the Court. — The order overruling the demurrer to the complaint is affirmed.