181 Wis. 5 | Wis. | 1923
The action was begun by the plaintiff for specific performance of the contract. Whether or not a court of equity shall grant a decree requiring specific per-
Some observations as to the mutual duties and obligations of vendor and purchaser may not be out of place. By the terms of the contract the vendor was required to furnish an abstract showing a clear title. By agreement of the parties the time within which the abstract was to be furnished was extended and the vendor duly furnished the abstract. It thereupon became the duty of the purchaser to make an examination of the abstract and point out such objections, if any, as he intended to insist upon. Easton v. Montgomery, 90 Cal. 307, 27 Pac. 280; Cowdrey v. Greenlee, 126 Ga. 786, 55 S. E. 918, 8 L. R. A. n. s. 137.
The abstract was returned in May, 1920, with the suggestion that the vendor should bring an action to quiet title to remove certain objections appearing upon the face of the abstract. The vendor brought this action, judgment was rendered in May, 1921, and thereupon the abstract was again delivered to the purchasers, who had it re-examined but made no objection to the title, except it was their claim that the presence of the transformer and the telephone line constituted an incumbrance and that they would not complete the contract unless the plaintiff (vendor) would allow some abatement from the purchase price. They made no further objection to the title until after this action was begun. If the objection relied upon by the defendants was not valid, by this course of conduct they undoubtedly waived the right to rescind the contract by reason of any defects in the title. Cowdrey v. Greenlee, 126 Ga. 786, 55 S. E. 918, 8 L. R. A. n. s. 137; Maupin, Marketable Title to Real Estate (3d ed.) p. 190, § 80, and cases cited; Kentucky D. & W. Co. v. Blanton, 149 Fed. 31; Kane v. Jones, 46 Wash. 631, 91 Pac. 2; Lang v. Hedenberg, 277 Ill. 368, 115 N. E. 566.
In Kutz v. McCune, 22 Wis. 628, it was held that “An easement obviously and notoriously affecting the physical condition of land at the time of its sale is not embraced in a general covenant against incumbrances.”
In some jurisdictions a distinction has been drawn between public and private easements, it being held that a public easement is not an incumbrance and that a private easement is. In Kutz v. McCune, however, the court said:
“In the case of the highway the doctrine does not rest upon the fact that the right is in favor of the public, but that the easement is obvious and notorious in its character, and that therefore the purchaser must be presumed to have seen it, and to have fixed his price for the land with reference to its actual condition at the time.”
In Huyck v. Andrews, 113 N. Y. 81, 20 N. E. 581, Kutz v. McCune was severely criticised. Nevertheless it has been adhered to and states the law as it now exists in this state. The court having placed it upon the ground that an easement was not an incumbrance where it was of an obviohs and notorious character, the rule applies to private as well as to public easements. The reason of the rule applies in this case. It was conceded that the purchasers knew at the time they entered into the contract of the presence of the transformer and of the telephone line, and while the evidence shows that the company maintaining the telephone line had a right to trim trees, it is a matter of common knowledge in this section of the country that the right to maintain such, lines is usually and customarily accompanied by the right to trim trees to prevent contact with wires. Certainly, the presence of the line was sufficient to charge the purchasers with full knowledge of the character and nature of the easement, it being open, obvious, and notorious. So it is com
The objections made by the defendants were therefore without merit. Having accepted and retained the abstract without making any other objection to the title, within the doctrine of the cases heretofore cited they certainly waived the right to rescind the contract for any defects in the title.
It appears, however, that as to the northeast quarter of the southeast quarter, being one-fourth part of the lands agreed to be conveyed, the abstract disclosed the following: “United States of America to David Thompson. Entry: Date of sale May 2, 1850.” There is no reference to a register or receiver’s receipt or other evidence showing that the purchase price had been paid to the government or that the government has in any way parted with its title.
In Fenn v. Holme, 21 How. (62 U. S.) 481, and Day v. Mountin, 137 Fed. 756, 764, it is held that a plaintiff cannot maintain an action of ejectment upon a title resting upon a mere entry. While the defendants have waived their right to rescind the contract and might be held to have waived their right to require the title to be perfected, we think it the better rule and the sounder practice that the plaintiff be required to complete the title by procuring a certified copy of the patent and having the same recorded, and upon doing so, within a reasonable time, the plaintiff will become entitled to have the contract specifically performed as prayed in the complaint.
' By the Court. — Judgment reversed, and cause remanded for further proceedings as indicated in this opinion.