Ditberner v. Bess, 163 Wis. 264

Ditberner v. Bess

163 Wis. 264 | Wis. | 1916

SiebecKER, J.

Tbe judgment awarded goes upon tbe ground that plaintiff is entitled to recover tbe purchase price of tbe farm under tbe land contract between himself and defendant, and in default of tbe payment thereof to have tbe title to tbe premises transferred to bim from defendant. As appears from tbe foregoing statement, tbe plaintiff bad not tbe title to tbe land when be contracted with defendant to convey title upon tbe conditions expressed in tbe contract, and be is not capable of conveying tbe title of tbe premises to defendant pursuant to bis contract because Peter Guler has disabled himself to acquire title thereto for plaintiff as required by bis contract with plaintiff. It also appears that defendant has acquired title to tbe premises by conveyances from Peter Guler and bis children and that'this is the title plaintiff contracted to acquire and convey to defendant. Tbe Gulers by their conveyance of the. premises to defendant have estopped themselves from claiming any right to any of tbe purchase money from tbe plaintiff under bis contract with Peter Guler for tbe conveyance of tbe premises. They must look to defendant for tbe purchase price of tbe farm. Tbe result of- these transactions is that defendant has tbe title to tbe premises which plaintiff promised to acquire for bim and that plaintiff is relieved from bis obligations under bis con*268tract with Peter Guler. Plaintiff, however, has a right to enforce whatever claim he has against defendant arising out of their contract for the sale and conveyance of the premises. Since the defendant’s transaction with the Gulers relieved plaintiff from paying them the balance due on the Peter Guler contract, equity demands that the defendant receive the benefit there®f to discharge his obligations under the contract with plaintiff. It appears that the plaintiff had paid Peter Guler $50 as part payment of the $2,000 purchase price of the farm. Plaintiff also paid a $258 mortgage on the farm owing by Peter Guler. These two payments total $308. The plaintiff was also entitled to receive from the defendant the amount which defendant agreed to pay plaintiff for the farm over and above the amount plaintiff agreed to pay Guler, namely, $450, in addition to the $50 defendant paid plaintiff when the contract was signed. The plaintiff’s equitable claim and interest in the land arising out of these transactions therefore amounts to $758, and he has an equitable claim on the premises for this amount and for his costs in the action. From this it follows that the court erred in awarding plaintiff a judgment for the full contract price defendant agreed to pay plaintiff for the premises, and also erred in awarding a strict foreclosure of all of defendant’s interest and title that he had .acquired from a source other than plaintiff in default of the payment of the full $2,500 purchase price. The result, of the decree would be to transfer to plaintiff a title and interest in the land he never owned and which he under the circumstances could not acquire. True, he had a contract right to acquire title to the premises from Peter Guler, but Peter Guler defaulted in securing title for plaintiff as he had agreed, and plaintiff had no legal grounds to compel the Guler children to deed to him. The defendant purchased the premises directly from Peter Guler and children, but this transfer does not operate to confer on plaintiff the right to -have such title and interest transferred to him *269upon defendant’s default under bis contract witb plaintiff. Tbe only right plaintiff bas under bis contract of tbe sale of tbe premises to defendant is to enforce bis equitable interest in tbe premises to tbe extent of tbe amount be bas invested in tbe land, wbicb is, as above shown, tbe sum of $'758. This interest arises out of bis contracts witb Peter G-uler and tbe defendant and under tbe purchase or payment of the Guler mortgage.

Plaintiff’s rights against defendant for bis claim can be secured by a judgment awarding him an equitable interest by way of a judgment lien on tbe premises to this amount, and, in case defendant defaults in paying it, directing a foreclosure and sale of tbe defendant’s interest in tbe land and applying tbe proceeds of such sale in satisfaction of plaintiff’s claim and tbe costs be incurred to enforce bis rights. It also appears by tbe evidence that tbe defendant, Bess, bad not tbe cash to purchase this land and that bo intended in case of purchase to mortgage it or otherwise convey tbe title to secure tbe money to pay tbe purchase price. Tbe record does not disclose what bas been done in this regard. There is evidence tending to show that Peter Guler colluded witb defendant to defraud plaintiff out of tbe $500 tbe defendant agreed to pay plaintiff for tbe land above tbe amount tbe plaintiff agreed to pay Peter Guler for securing and conveying a clear title thereof to plaintiff. It cannot be determined from tbe record whether plaintiff can be protected as against others who may have obtained liens on defendant’s interests. In view of tbe fact that tbe judgment appealed from must be reversed, tbe plaintiff may desire to have others claiming liens, if any exist, made parties to this action and have their rights determined and declared. Tbe plaintiff may also, if be is so disposed, ask to have Peter Guler, apparently a financially responsible person, made a party to this action upon tbe theory that be is a joint wrongdoer witb defendant to defraud plaintiff of bis rights to and interest in the lands, so as *270to enable plaintiff to seek satisfaction of bis demands by securing judgment against both Bess and Peter G-uler. In the light of these conditions we consider it appropriate that this court should not enter a final judgment upon the record, but that the case should be remanded to the circuit court for such further proceedings as the parties may deem proper and as the court may find just and conformable to law.

By the Court. — The judgment appealed from is reversed, and the cause is remanded to the circuit court with direction for further proceeding as indicated in this opinion, conformable to law.