Fontaine v. Riley, 189 Wis. 226

Fontaine v. Riley

189 Wis. 226 | Wis. | 1926

Doerfler, J.

Sec. 2304 of the Statutes for the year 1923 reads as follows:

“Every contract . . . for the sale of any lands or any interest in lands shall be void unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom . . . the sale is to be made or by his lawfully authorized agent.”

Sec. 2305 reads as follows:

“Nothing in this chapter contained shall be construed to abridge the powers of courts to compel the specific performance of agreements in case of part performance of such agreements.”

Where an oral contract for the purchase of real estate is relied upon in an action for specific performance, all of the essential terms of the contract must be proven by clear, satisfactory, and convincing- evidence. A mere preponderance of the evidence will not suffice. Whether the degree of proof under the rule thus stated has been furnished must be deter-tíiíSqd from the testimony of the witnesses and all the sur*233rounding facts and circumstances. The land in question was wild swamp land, bounded on the north by the bay, and was covered with trees and brush. Prior to the alleged purchase of the plaintiff and up to the time of the Knudsen purchase, no part of the land had been cultivated or improved (except as hereinafter indicated) ; no fences or other evidences of demarcation had been placed thereon, and no use thereof had been made; unless it be by the cutting of some timber or the acts of sportsmen in the pursuit of game. The title to this land had been in the Riley family for a long period, and, being undesirable for agricultural or residence purposes, but few sales had been made prior to 1922.

In 1920 the plaintiff purchased forty acres to the east of and adjoining the Riley tract from a third party, and thereon built and established a summer home, and it appears that he was induced to make this purchase by reason of the sandy shore along this tract, which made it desirable for bathing purposes. Along the shore of the bay, and to the west of plaintiff’s tract, is located a point which extends out into the bay, and the plaintiff was desirous of purchasing an additional tract of land which would include this point, and which would extend a sufficient distance westerly to protect it for the shooting of wild ducks. Plaintiff and the Rileys had been on friendly terms for many years, and this friendship evidently furnishes the reason why the contract in question was not reduced to writing and made definite. Each of the parties had implicit faith in the other, and the parties evidently considered their word as binding as a bond. Both the plaintiff and the Rileys appeared before the court apparently ready and willing to carry out an oral agreement, but unfortunately they disagree upon the vital and essential terms of the contract, the plaintiff claiming that he purchased the east twenty acres of the Riley tract, the defendants Riley claiming that the purchase included only about seven acres.

*234That there should be glaring a discrepancy in the area cannot readily be explained. It does seem quite plausible that the plaintiff desired a tract of land sufficiently large to insure the protection of the point so it might be used for hunting purposes. The contention of the plaintiff that the proposed tract was to consist of the east twenty acres of the Riley land is strongly supported by the testimony of the plaintiff and his witness that it was understood that the plaintiff would pay per acre the identical amount which he paid for the tract purchased by him on which his residence is situated, and this tract consisted .of forty acres and was purchased at the price of $40 per acre. If we assume that the plaintiff actually purchased twenty acres,- then the agreed price of $800 would account satisfactorily for the purchase price. But right here an irreconcilable conflict between the parties appears. In accordance with the plaintiff’s version, it was understood that the westerly line on the shore of the bay was marked by several logs there situated, and that this point was selected by Van Dyke, the expert sportsman, as affording- ample protection to the point. In fact Van Dyke and the plaintiff testified that the former paced a distance of about 500 feet to the west of the point, and that when he arrived at the junction of the two logs he indicated a distance sufficiently far to the west that would protect the point. On the other hand, there is testimony in the case that the area so indicated would not include twenty acres but merely thirteen acres. This raises a considerable doubt in the mind of the court of the correctness of plaintiff’s contention. Both of the Rileys testified that the tract was not sold by the acre, but that a definite strip was outlined, and that the westerly point was fixed by Riley in cutting a blaze upon a birch tree, which would give the plaintiff an area a trifle in excess of seven acres.

Plaintiff’s counsel argue that while it was first agreed that the contract should include about twenty acres, it was thereafter, and before the payment of the purchase money, *235modified so as to include definitely the east twenty acres of the Riley tract. If plaintiff’s version be correct, it is difficult to perceive why a survey of the tract was a necessary precedent to the conveyance of the land. By describing the land as the east twenty acres, we have as definite a description as any surveyor, can furnish.

However, a contract of this kind requires not only a reasonably accurate description in order that specific performance may be decreed, but the other essential terms of the contract must also be shown by clear, satisfactory, and convincing evidence. The plaintiff asserts that the agreement provided that a conveyance was to be executed after the making of a proper survey. The Rileys admit this, but they insist that the survejr was to be made by the plaintiff, while the plaintiff urges that it was to be made by the Rileys. Assuming that it was difficult to make a survey in the spring of the year by reason of the presence of water on the land; that in the summer it was nigh impossible owing to mosquitoes, and that a survey was limited to the fall of the year, two full years had elapsed before any survey was made, and it was then made only at the time when the defendants Knudsen had made their purchase. No anxiety was manifested by either of the parties to have this land surveyed. The matter was permitted to drag on for two years, and during all this time each was left under the impression that his particular version as to the area involved in the sale was correct. Had the subject of a survey during the period of this protracted delay been seriously discussed by the parties, it is reasonably presumable that the inconsistent and irreconcilable claims of the parties would have been revealed long before the summer of 1922. Delays of this kind, in an oral contract, invariably enhance the difficulties involved in the proper construction thereof. Either party had a right to have a survey made, where the other either refused to comply with the contract or was the cause of the delay for an unreasonable length of time. Such delay *236is persuasive to a degree that the ‘making of the survey was not a condition precedent to the conveyance of the land and the payment by the plaintiff of the balance on the contract. The record does, not reveal that a survey of the twenty acres claimed by the plaintiff has ever been made, and the plaintiff has seen fit to commence his action for specific performance independently of a survey, and in so doing assumes a position rather inconsistent with his testimony in which he asserts his. rights to a survey as a condition precedent. This merely has a tendency to prove what has heretofore been said in this opinion, that if plaintiff by the oral agreement purchased the 'east twenty acres of the Riley tract, no survey was necessary to ascertain the description, and that a deed could have been procured which would have conveyed the proper area at the time of making the oral contract. That a survey was deemed necessary by both parties to the contract indicates strongly that the area involved was not sufficiently definite to form the basis of an oral contract which could be enforced by specific performance.

In Blanchard v. McDougal, 6 Wis. 167, it is said in relation to the establishment of an oral contract like the one involved in the instant case: “If the material facts, namely, the making of the contract, or its essential terms, are left in doubt, a court of equity cannot, upon mere preponderance of evidence, decree specific performance.” In that case it was also held that in an oral contract, in order that it may be enforceable, the essential terms thereof must be established by clear, definite, unambiguous, and unequivocal testimony. That is also the holding, substantially, of this court in the following cases cited in the brief of counsel for. .the defendants: Knoll v. Harvey, 19 Wis. 99; Hibbert v. Mackinnon, 79 Wis. 673, 49 N. W. 21; Dewey v. Spring Valley L. Co. 98 Wis. 83, 73 N. W. 565; Russell v. Fish, 149 Wis. 122, 135 N. W. 531; and Wege v. Boehm, 184 Wis. 215, 199 N. W. 210. See, also, 25 Ruling Case Law, 218, 219.

*237We therefore conclude that the essential terms of the contract were not established by clear, satisfactory, and convincing evidence, and that the contract is not free from ambiguity or. doubt. In arriving at this conclusion, the rule established by this court that great weight must be given to the conclusions arrived at by the trial court has not been overlooked. The trial court has facilities for judging of the credibility of the witnesses which are denied this court; it meets the witnesses face to face, and can form an opinion to some extent of the witnesses' credibility from their appearance and demeanor upon the stand and from the manner in which they testify. But there are certain outstanding physical and other facts which are disclosed by the cold record which raise in our minds serious and abiding doubts, which stand as an unsurmountable obstruction to the granting of the relief prayed for.

But, assuming that the oral contract had been established, under the rule applicable to cases of this kind we would have no hesitancy in refusing to enforce specific performance, because it is clear that the Knudsens are innocent purchasers, and that they did not have knowledge of plaintiff's alleged contract or of facts which in law would put them on inquiry to ascertain the extent of plaintiff’s alleged purchase. First, it is undisputed that Knudsen’s deed was executed and recorded before plaintiff filed his lis pendens; and second, that he paid a valuable consideration for the land purchased by him and that he went into actual possession thereof. These circumstances require weighty and convincing evidence before we can deprive a party situated like the Knudsens of their property. All of the witnesses for the defendants testified that Knudsen, prior to the time he obtained his option, made an examination of the land; that Riley admitted that he had sold a parcel of land to the plaintiff, and he indicated the extent of such purchase by a blaze made by him on a birch tree which he exhibited to defendants’ witnesses. These witnesses also testified that at the *238time when the option was. given there were no trees or poles cut or stones assembled for the construction of the hunting lodge; that the path which the plaintiff claims he cleared showed no evidence of such clearing; that while a drain was constructed by the plaintiff, it was located just east of the dividing line between his property and that of the Riley tract; and that the Knudsens had no knowledge whatsoever of any possession of the plaintiff’s alleged twenty-acre tract having been delivered to the plaintiff, or that use had been made of such tract by plaintiff’s son for hunting purposes.

These considerations are vital in determining any claim of the plaintiff as to the Knudsens. But over and above all, the fact that the alleged collection of material for a hunting lodge was located on the seven-acre tract is strongly significant. Furthermore, it is undisputed that whatever work was done toward the erection and construction of this lodge was performed at or about the time when Knudsen appeared upon the scene, and this is evidence, if at all, that the possession was a scrambling or litigious possession, and not one which the court would recognize as of great weight in an action for specific performance like the one before us. 36 Cyc. 666.

A path through wild lands covered with timber constitutes a fact of little probative force to prove claim of possession. Such paths or roads are common throughout the entire Northern country, and indicate merely that at some time or other they were used for logging roads during timber-cutting seasons, or for a convenient path upon which lovers of nature and sportsmen are accustomed to travel. It also strikes us that the claim of the plaintiff that he had performed work on this path is not in accordance with even the preponderance of the evidence.

The occasional use of the alleged twenty acres claimed to have been purchased by the plaintiff under the oral contract, for hunting purposes, is of little or no significance or weight on the subject of possession, and would afford no basis for *239holding that Knudsen had knowledge of plaintiff’s alleged possession, even if we assume (which assumption is unwarranted by the evidence) that he had seen plaintiff or his son hunting upon this strip.

We therefore conclude that the Knudsens are innocent purchasers for value; that they paid a valuable consideration; that they went into possession of their property purchased; and that the evidence does not disclose such facts as are required under the law to place a purchaser on inquiry.

By the Court. — The judgment of the lower, court is reversed, and the cause is remanded with directions to dismiss plaintiff’s complaint.