Denton v. White, 26 Wis. 679

Denton v. White

26 Wis. 679 | Wis. | 1870

Dixon, C. J.

The defendant Morgan relies on the principle that the possession of the grantor, remaining *683in after conveyance of the land by him, or after conveyance by the sheriff or other proper officer under judgment or decree against him, is not adverse to the grantee or those claiming under him, and so is no notice to a purchaser from the grantee or from any person holding under him, of the rights of the grantor, if he has any beyond those of a mere occupant by permission or tenant at sufferance of the grantee or party having the legal title; and that such possession by the grantor imposes no duty or obligation upon the purchaser to inquire of him and ascertain what his right of possession or claim of title may be. Mr. Morgan is in no position to avail himself of this principle. It does not appear that he is the legal or equitable owner of the land under Mr. Wording. The case is involved in most singular obscurity upon this point. In his answer he says he is the equitable owner of the premises under a contract with Mr. Wording; that in the month of October or November, 1862, he made Wording an offer in writing for the premises, which offer was duly accepted by Wording, and thereafter he paid Wording in'full for said premises, according to the agreement made therefor. In his testimony given on the trial he says he knows the land described in the agreement executed by Wording as attorney of Philo White to the plaintiff. “ It is the same which I purchased of Judge Wording in November, 1862.” This is all there is in the pleadings and evidence in support of this mysterious purchase by Mr. Morgan. It does not appear what he paid, or whether he paid any consideration of value or not. In his answer he says he paid for it according to the agreement made therefor, but what that agreement was, or whether made upon any valuable consideration, is not averred or shown. For all that is alleged or proved, there may have been no consideration, and Mr. Morgan may be a mere volunteer, if in fact he has any interest or title whatever. The contract, to be *684of any force or effect as a conveyance of an interest in the land, must have been in writing and subscribed by Mr. Wording; and yet this is neither alleged nor proved. Mr. Morgan’s testimony, the little that he gives, is also obscure. It is difficult to say whether it was the land or the agreement executed by Wording as the attorney of White, he intended to testify he had purchased of Wording. The court below understood that it was the agreement, and accordingly found that Wording, “ by some means, sold and conveyed all his interest in said contract to the defendant Morgan.” It is not easy to perceive 'how the court could have found so much in Mr. Morgan’s favor, especially. in view of Mr. Wording’s testimony, who says: “At Col. White’s urgent solicitation I took from him a quitclaim of the land, and paid him six hundred dollars, or rather Mr. Morgan did for me after I left.” The conclusion of our minds, about which we have no doubt or hesitation after a careful examination of the case, is, that Mr. Morgan is not a purchaser, either legal or equitable, of the premises, or of the contract of which the plaintiff seeks a specific performance, and that, as charged in the complaint, he has no real but only a pretended interest.

And this view is strongly corroborated by other facts and circumstances in the case, such, for example, as the tender of the deed from Mr. Wording to the plaintiff in September, 1863, long after Mr. Morgan’s alleged purchase from Mr. Wording, and the demand from the plaintiff of the residue of the purchase money for Mr. Wording. This was done by Mr. Morgan in the name of Mr. Wording, and acting as his agent. Why should Mr. Morgan have done this, if, as is now claimed by him, he was then the owner and entitled to control and transact the business for himself? The circumstance is entirely inconsistent with the claim he now asserts and the position he seeks to occupy.

The case must be decided, therefore, as if Mr. Morgan *685were out of it, and as it stands between the plaintiff and Mr. Wording. And as between these parties it presents no points of difficulty:

It is said that the plaintiff has lost all right to enforce performance by his laches or neglect to tender the amount due and demand a deed. The evidence is quite clear and positive that the plaintiff did all in his power to procure an adjustment' of the balance due, and to pay it and obtain a deed, before Judge Wording’s departure for the south in September, 1862. He applied to Judge Wording more than once for that purpose, and the judge, in the hurry of his affairs, put liim off; and the last time he went to his office pursuant to an agreement previously made, he found that the judge was gone. The judge admits having had one conversation with him on the subject, and having directed him to call at his office, but does not recollect that he did call. And in the conversations which were had, it appears that the parties did not agree upon the amount due. The plaintiff was surprised at the sum demanded, and it turns out.that he had cause to be, for it was greatly in excess of the amount actually due. No laches can be imputed to the plaintiff at that time. He had then been guilty of no unreasonable delay in complying with the contract, and since that time he has had no opportunity to do so except by submitting to the exorbitant demand made of him.

And this disposes of the next objection, which is, that the tender of the deed of the premises by the defendant Wording in September, 1863, determined the plaintiff’s rights under the contract. The tender was made upon condition that the plaintiff pay the amount previously claimed to be due from him on the contract, which was excessive. The plaintiff lost nothing by refusing to accept the deed under such circumstances.

And as to the amount found due by the court below, *686'which is claimed to be erroneous, its correctness appears from the pleadings. There is no controversy between the plaintiff and the defendant Wording upon this point. The plaintiff alleges in his complaint that he had paid upon the contract, and to be applied upon the judgment, the sum of $865. The defendant Wording, in his answer, admits the payment of the same sum. This admission of the answer is conclusive, and not open to contradiction or disproof by the party who made it.

The last alleged error is in decreeing a performance in favor of Paine, the assignee of the plaintiff. This question has already be settled by the decision of this court upon the appeal of the assignee in this suit. Petition of Paine in suit of Denton v. White, 23 Wis. 91. We are still quite satisfied with the grounds of that decision, and have no disposition to review them; nor do we think the objections now taken by the learned counsel tenable. As shown by that opinion, the facts stated in the petition require no proof, the plaintiff having himself joined in it. The judgment is founded upon the pleadings and evidence, and upon the petition, which is a part of the record, requiring no proof; and no notice of hearing upon the petition was necessary to be given to the adverse parties. These are the objections now taken.

By the Court. — -Judgment affirmed.