Clarke v. Maisch

171 Wis. 225 | Wis. | 1920

Siebecker, J.

It appears that the lots in question were sold to the defendant at an auction. The defendant fully understood the method of conducting this sale and participated in the bidding for the purchase of the two lots included in the memorandum of sale executed by the parties at the time the auctioneer struck them off to him as the highest bidder. It appears that the' auctioneer announced when the sale began that a deed conveying a good and clear title would be given to the purchasers and that an abstract of title of the lots sold was at the Bank of Middleton for the use of all the purchasers if they desired to examine the record title to the lots. Mr. Maisch was not present to hear this announcement, nor was this information communicated to him before he purchased the lots and signed the memorandum of sale. It is a rule of law that the conditions of a public sale announced by the auctioneer are binding upon a purchaser, whether he knew them or not. Keske v. Boeder, 168 Wis. 369, 170 N. W. 247; Kennell v. Boyer, 144 Iowa, 303, 122 N. W. 941; 6 Corp. Jur. p. 828, § 20, cases, note 70.

The evidence is clear that the defendant was a bidder for the lots at an auction sale, that they were struck off to him, and that it had been announced that thé abstract at the bank was to be furnished for the use of all the purchasers. The clear implication of this announcement is that no other abstract was to be furnished by the vendor and that the vendor of the lots was not to furnish the vendees an abstract of title with the deed. Under these facts and circumstances the memorandum of sale is subject to this condition concerning an abstract, and the plaintiff has the right to stand on it as one of the terms of the sale in addition to those embodied in the written memorandum. It is well established by the adjudications that a vendor is not required by law to furnish the vendee of land an abstract when the contract of sale is silent on the subject.

“In the United States an abstract is not an implied feature of every sale of land. Since every title is of record, the doctrine of caveat emptor, in the absence of special agreement, requires the purchaser to satisfy himself as to title, and for that purpose to make the necessary investigation and abstracts.” Thompson v. Robinson, 65 W. Va. 506, 64 S. E. 718; McQuary v. Missouri L. Co. 230 Mo. 342, 130 S. W. 335; Easton v. Montgomery, 90 Cal. 307, 27 Pac. 280; State v. Grimes, 29 Nev. 50, 84 Pac. 1061; Tapp v. Nock, 89 Ky. 414, 12 S. W. 713; Espy v. Anderson, 14 Pa. St. 308; Turn Verein Eiche v. Kionka, 255 Ill. 392, 99 N. E. 684, 43 L. R. A. n. s. 44 and note.

It necessarily follóws that the trial court erred in receiving evidence of custom on the subject of the obligation of a vendor to furnish the vendee an abstract of title,' since by the contract of sale, as above shown, the defendant made-this purchase upon the condition that no abstract would be furnished him as purchaser, but that he in common with all purchasers of lots could, examine plaintiff’s abstract at the bank. . Proof of custom was. incompetent. Evidence of custom and usage is only permissible to add tacitly implied incidents to a contract, “to define what is ambiguous or is-left indeterminate in a contract, where both parties have knowledge of the custom, or are so situated that such knowledge may be presumed.” Gehl v. Milwaukee P. Co. 105 Wis. 573, 81 N. W. 666; Lamb v. Klaus, 30 Wis. 94.

The plaintiff is entitled to recover on the cause of action alleged in the complaint.

By the Court. — The judgment appealed from is reversed, and the cause remanded with direction to award judgment in plaintiff’s favor, in accordance with this opinion.