Foster v. Lowe

131 Wis. 54 | Wis. | 1907

Dodge, J.

The land contracts involved are bilateral and, upon their face, purport to set out the mutual undertakings of the two parties. There is, therefore, a presumption that they do so, and that if the minds of the parties had in fact met upon any other elements, conditions, or propositions, all such had been abandoned, except as to those things which were expressly defined in the writing which, by their signatures, they had declared to be a correct and complete expression of their final contract. Conant v. Estate of Kimball, 95 Wis. 550, 70 N. W. 74; John O’Brien L. Co. v. Wilkinson, 117 Wis. 468, 94 N. W. 337; Jost v. Wolf, 130 Wis. 37, 110 N. W. 232. Only by the very clearest proof, if at all, can this presumption be overcome. Kercheval v. Doty, 31 Wis. 476, 491. We are unable to say that the court’s finding that it has not been so overcome is antagonized by any clear preponderance of the evidence, and must, therefore, proceed to the consideration of the rights of the parties upon the basis of the land contracts as written.

It is contended that, by the defendant’s breach of the contracts in failing to pay the several instalments thereon as they became due, these contracts have become terminated, and, according to their very terms, are null and void. This subject was quite fully considered in Shenners v. Pritchard, 104 Wis. 287, 80 N. W. 458, where was pointed out the ab; surdity of a construction which would enable the wrongdoer to gain an advantage over and against the will of the other party by his own default, and the'conclusion was reached that no such construction as here contended for was permissible, especially where, as is the case here, the contract expressly declared an option in the creditor to revive and continue the contract in force after such defaults. The conclusion reached was that “this clause in the contract leaves it for the vendor to say whether he will declare the contract void or not, and that he may elect to sue for the unpaid purchase money .or for a specific performance of the contract, or to declare the contract at an end.” We see no occasion again to review the authorities or reasons then fully considered, nor to depart from the rule of law established by that case.

Further, it is contended that notice of the exercise of the creditor’s election to continue the contract in force is an essential prerequisite to commencing suit. That contention was also considered and negatived in the Shenners Case, and it was held that, so far at least as the demand for payment of the money promised by the contract was concerned, the commencement of the suit was an all-sufficient declaration and notice of that election. The only distinction on this subject between the Shenners Case and this is that the creditor’s option here is to be exercised in writing, which was not required in the former case. If the commencement of suit and filing of complaint is a sufficient declaration of the exercise of the election, as ruled in that case, it certainly satisfies the requirement of a writing, for it is in writing, and most unambiguously declares the choice of the plaintiff that the contract shall be in force and the money shall be paid. As said in the Shenr mrs Case, no time is fixed for the exercise of this election, and a contrary ruling would result merely in a dismissal of this action until the notice had been given, when it might immediately be recommenced. This would be mere empty formality in a case where the defendant’s position .is not that of having been deterred from paying because of the supposed annulment of the contract, but of resistance to any liability upon it, however urgent the choice of the creditor that it should be in force.

Another contention pressed is that it is shown that the plaintiff has not the title to the land, and is not in a position to mate conveyance thereof upon payment. It has been uniformly ruled in this state that a contract of this sort, wherein the purchaser agrees to pay the whole purchase price absolutely in consideration of merely a promise by the grantor that after such completed payment and upon demand a conveyance of the land shall be made, the former’s liability is absolute at law, and that no tender of conveyance, nor showing of ability to convey, need either precede or accompany the recovery of the purchase price. Gale v. Best, 20 Wis. 44; Shenners v. Pritchard, 104 Wis. 287, 80 N. W. 458; Collins v. Schmidt, 126 Wis. 227, 105 N. W. 671. In the last of those cases the plaintiff was a mere assignee of one instalment of the purchase price and did not hold any title to the real es-fate, and made no offer of conveyance or showing of any ability to procure conveyance. The result of such bolding is that when the purchaser shall have paid in accordance with the land contract, and not until then, he acquires a binding obligation on the part of the vendor to convey the land to him, and has a right of action to enforce that obligation either by suit for specific performance or action for damages resulting from breach thereof. Whether there might be an equitable defense or counterclaim where it was shown that the vendor had so disabled himself and was so insolvent that neither of these remedies could be available is a question which may be reserved until it arises. There is no showing in this case that Krumrey is otherwise than entirely responsible, nor that the land is not in reach of a suit and decree for specific, performance, although it is shown that it has been conveyed by quitclaim to another person, who, however, is not proven to be a bona fide purchaser. The vendor in a land contract who assigns that contract or the right to the payments thereunder to another holds the legal title to the land in trust for the two parties under that contract, and such trust persists and accompanies the legal title wherever it may go, unless, indeed, into the hands of a dona fide holder for value. Of course, when payment is completed that trust is solely and exclusively for the purchaser, who thereby gains the complete equitable title to the land. Church v. Smith, 39 Wis. 492; Bartz v. Paff, 95 Wis. 95, 69 N. W. 297.

The suggestion that because Krumrey, some time after having assigned the land contracts, made a quitclaim of the land to a third person, he had exercised the option to declare the contract void so that the contrary election to now declare it valid and binding cannot be exercised, we do not deem of force. Under our present legal policy of easy and complete assignment of rights of action, at least those on contract, the assignment of the debt itself necessarily carries with it all securities and all rights of the first owner serving to make it val-liable, and tbe assignment of the debts in this instance transferred to the assignee the right to exercise the option conferred by the contract npon the vendor, and denuded the latter of any right or power to so exercise it as to interfere with his as-signee’s protections for the debt. It would be obviously unreasonable to hold that Krumrey might, for a valuable consideration, assign this debt to the plaintiff and still have the right-to declare that the contract between him and the defendant, should be void and no debt exist.

We discover no error in the judgment of the trial court.

By the Gourt. — Judgment affirmed..