104 Wis. 608 | Wis. | 1899
This action was commenced May 29, 1891, to foreclose a note and mortgage for $1,258.60, given March 21, 1896, by the defendant Woodard and wife to the ■defendant Thomas A. Haelcett as a part of the purchase price ■of the premises described. On April 12, 1891, Haelcett assigned the note and mortgage to the plaintiff as collateral security for the payment of $200 and interest. The complaint is in the usual form. Woodard answered to the effect that Haelcett had no title to a portion of the premises, and that he was induced to make the purchase on the misrepresentation of Haelcett that he was the owner of all the premises. Haelcett was interpleaded, and took issue with the ■allegations of Woodard's answer, and upon the trial of the issues so formed the court found as matters of fact¿ in effect, that January 17, 1896, Haelcett and Woodard entered into a written contract by the terms of which Haelcett agreed to sell and convey by warranty deed, with full covenants, all
And as conclusions of law the court found, in effect, that the plaintiff was entitled to judgment of foreclosure and sale of the mortgaged premises, and that there was due thereon to him $200 and interest at eight per cent, from April 12, 1897, together with his costs and disbursements out of the judgment; that the whole amount nominally due on the note and mortgage was $1,361.37, from which Woodard was entitled to a deduction by reason of such failure of title of $1,110.35; and ordered judgment to be entered accordingly. Erom the judgment so entered Hackett brings this appeal.
It is expressly found that, upon Wooda/rd's receiving the deed and giving back the note and mortgage, he obtained and went into the possession of the premises under the deed, and paid the first instalment of interest on the note and mortgage. There is no pretense that Woodard was ever ousted from shch possession. This court has frequently held, in effect, that the grantee in a deed with full covenants, who took possession of the premises at the time of the conveyance, and remains in undisturbed possession, cannot defend an action to foreclose a mortgage executed by him on such premises to secure notes for a portion of the purchase money on the ground that his grantor had no title to the land. Taft v. Kessel, 16 Wis. 273; Ludlow v. Gilman, 18 Wis. 552; Bardeen v. Markstrum, 64 Wis. 615; McLennan v. Prentice, 85 Wis. 427. See, also, Mecklem v. Blake, 22 Wis. 495; McIndoe v. Morman, 26 Wis. 588; Oakes v. Buckley's Estate, 49 Wis. 600; Smith v. Hughes, 50 Wis. 620; Clementson v. Streeter, 59 Wis. 429. The ground upon which these decisions rest is that, the vendee being in the undisturbed possession, which may ripen into a perfect title, it cannot be assumed with any certainty that he has suffered, or ever will suffer, any actual damage by reason of such want of
By the Oov/rt.— The judgment of the. circuit court is reversed, and the cause is remanded for further proceedings according to law.