Church v. Nash

163 Wis. 424 | Wis. | 1916

KekwiN, J.

The controlling question in this case is whether Marian Turretin was a party as joint vendee with her husband in the contract with Cross and wife.

■ It is true that the evidence is meager on the point, but the court below found that it was the intention of the parties that Marian Turretin should be a party to the contract, but through omission and neglect of the scrivener who drew the contract her name was omitted. We think the evidence is sufficient to support the finding. The making of the contract and notes was one transaction, and while Marian Turretin was not present when the contract was drawn she signed the notes given for the purchase money and paid part of them after her husband’s death. She also sold the contract to the plaintiff. This evidence tends to show that she at least considered that she had an interest in the contract and tends to prove that she understood that she was'a party to it. Moreover, the written contract itself tends to show that it was the intention of the parties that Marian Turretin was a party to the contract. The contract is signed only by the vendors. The plural, “parties,” is used throughout the contract in referring to the vendees. After description of property in the contract it proceeds: “And the parties of the first part hereby further agree that they will on demand of the parties of the second part . . .” And in the first part of the contract, where both parties to the contract are referred to,' after naming the parties of the first part the contract continues: “Anri Ered Turretin and . .. .., parties of the second part,” a blank being left in the contract apparently for the name of Marian Turretin. It also appears that the scrivener who wrote the contract indorsed thereon, “Wm. Cross and wife to Ered Turretin and wife.” Marian Turre-tin also testified that she supposed the assignment conveyed good title to plaintiff, subject only to the unpaid balance, and that if she paid up under the contract she would get a deed. Upon the record we are convinced that the court below was justified in finding that the contract was made with Ered Tur-retin and Marian Turretin, his wife. This being so, upon the death of Ered Turretin Marian took the whole property. Wallace v. St. John, 119 Wis. 585, 97 N. W. 197; Fiedler v. Howard, 99 Wis. 388, 75 N. W. 163.

It is further contended that defendant Nash did not have notice of tbe rights of plaintiff in tbe property or that plaintiff claimed tbe whole title to tbe property. Aside from tbe possession of plaintiff there is considerable evidence that tends to show that Nash ought to have known that plaintiff claimed an interest in the property. Nash admitted that he knew plaintiff had bought the property or had some kind of an agreement with the Turretins that he was claiming under. But the possession of the plaintiff and the condition of the title at the time Nash bought was sufficient notice to put him on inquiry. The deed to Nash was made February 3, 1914, and the contract between Cross and wife and Turretin and wife was not recorded until April 13, 1914, so the title as it appeared of record at the time Nash bought was not in the Turretins or either of them, but appeared of record to be in Cross. It is clear, therefore, that Nash was chargeable with notice of the rights and title of plaintiff. Pippin v. Richards, 146 Wis. 69, 130 N. W. 872.

It follows that the findings and conclusions of the court below are right, and the judgment must therefore be affirmed.

By the Court. — The judgment is affirmed.