Gates v. Parmly

May 22, 1896

Reporters:: , ,
Before:: Pinney

The following opinion was filed February 18, 1896:

PiNNey, J.

1. The defendants’ counsel contend that this is a legal action, in which they were entitled, as a matter of right, to a trial by jury; that the provision in the contract requiring the delivery of a complete abstract of title to the lands described in the contract and deed by August 15,1889, and that in case of failure to furnish it, or if it failed to show a perfect title in the plaintiff at the date of the conveyance he had made to the defendant Parmly, trustee, or to have been made perfect in him prior to the making of such abstract, then no further sum of money should be held due to the plaintiff under the contract or otherwise, but that the said Parmly, trustee, could hold said lands free and discharged of any further claim for purchase money, and the $22,500 already paid should be the full price and consideration for the lands, was a condition precedent to the right to Recover the second payment of $22,500 of purchase money, or any part thereof; and, as it was stated that such condi*306tion had not been performed within the time limited, the plaintiff could not recover any sum whatever, either in a legal or equitable action.

The allegations of the complaint and prayer for relief show conclusively that the action is an equitable one, in the nature of an action for specific performance and for relief from a condition precedent, by way of a penalty or forfeiture, as security for performance on the part of the plaintiff, and not a provision for liquidated damages. A vendor may maintain an equitable action against a vendee for specific performance of a contract for the sale and conveyance of lands when he agrees to convey to the vendee, and the latter merely promises to pay a certain sum as the price. Since the latter may, by a suit in equity, compel the execution and delivery of a deed of the premises, the vendor may also, by a similar equitable action, enforce the undertaking of the vendee, although the substantial part of his relief is the recovery of money. Pomeroy, Spec. Perf. § 6. As the vendor in this action seeks relief from a penalty or forfeiture imposed by a condition precedent in the contract and to enforce a vendor’s lien for unpaid purchase price, the jurisdiction of equity is undoubted, for in such a case he cannot have a complete and adequate remedy at law, as of these questions a court of law has no jurisdiction.

2. The rule is universal at law that the failure to perform a condition precedent is a perfect bar, and, in general, the rule is the same in equity unless there is some peculiar ground of equity to take the case out of the general rule. In Davis v. Gray, 16 Wall. 229, 230, it was said: “There is a wide distinction betwreen a condition precedent where no title is vested and none is to vest until condition performed, and a condition subsequent operating by way of defeasance. In the former case equity can give no relief. Failure to perform is an inevitable bar.” And the case of Wells v. Smith, 2 Edw. Ch. 78, 83, was referred to. But the case of Davis v. *307Gray was that of a condition subsequent, and it was held that equity would interfere in such, a case, and relieve, upon the principle of compensation, where that principle could be applied, giving damages if damages should be given and the proper amount could be ascertained. Equity will relieve against a penalty or forfeiture, and the authorities are quite generally agreed that it will do so even where it is in the form of a condition precedent, where it is evidently intended merely as a security for the payment of money or the performance of any act where failure to perform it may be compensated in money. It is not necessary that the penalty or forfeiture should be specified to be such in express terms; it is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍enough if such is the clear nature and substance of the provision. And, “ although the distinction between conditions precedent and conditions subsequent is known and often mentioned in courts of equity, yet the prevailing though not the universal distinction as to condition there is between cases where compensation can be made and cases where it cannot be made, without any regard to the fact whether they are conditions precedent or conditions subsequent.” Story, Eq. Jur. §§ 1314 — 1316. And the same learned author says: “ In cases of this sort, where the stipulation is in the nature of a security, and specific performance is sought to be enforced, and yet the party has not punctually performed the contract on his own part but has been in default, and admitting of compensation, there is rarely any distinction allowed in courts of equity between conditions precedent and conditions subsequent.” Story, Eq. Jur. §§ 1315 et seq.; Id. § 1320.

Upon the execution of the contract, the defendants became, in the estimate of a court of equity, the owners of the land, and the plaintiff the equitable owner of the purchase money which they held in trust for him; and the condition in the contract operated as an imperfect mortgage or pledge of his equitable ownership of the purchase money, that he *308Would furnish and deliver, on or before the time specified, an abstract of title showing .perfect title to the lands, and such imperfect mortgage or pledge would become redeemed or avoided upon what would be regarded as an equitable performance on his part. If the vendee obtains title to the lands or damages which can be regarded as compensation for partial failure, he gets all that, in justice, he is entitled to. This doctrine has been applied to many cases of breach of condition precedent where the parties could be put in the same situation as if the condition had been performed, and so it would seem that where the condition is security for the payment of money or the performance of any particular act, or in the nature of a penalty or forfeiture for nonperformance of such condition, such relief may be granted. Pom-eroy, Spec. Perf. §§ 391, 392; Waterman, Spec. Perf. § 435; Grigg v. Landis, 21 N. J. Eq. 494; Edgerton v. Peckham, 11 Paige, 352, 363; Sanders v. Pope, 12 Ves. 282; In re Dagenham Dock Co. 8 Ch. App. 1022. But, where there cannot bo any just compensation decreed for the breach, equity will not interfere. It is insisted by the plaintiff’s counsel that the defendants had, by their contract, waived the condition in question; but we Alo not find any evidence that would justify such a conclusion, and we think that, upon well-established equitable principles, the relief sought from the breach of the condition precedent in this case may be properly granted.

3. As the provision of the contract in question was evidently intended by way of security, quite as much so as if the penalty or forfeiture had been expressly provided for and named as such, we think it clear that the doctrine in respect to stipulated or liquidated damages is not applicable to the case. The contract sufficiently indicates that it was not intended that, in case of a breach of the condition, title to lands in excess of two thirds or three fourths or seven eighths of the entire quantity of the lands to which title had *309passed to Parmly, trustee, under the deed, was to be retained, and the second instalment, $22,500, of the purchase price, as well, should be considered or held as liquidated damages. It is not expressly or in substance so provided; The great disparity between the damages which might, thus be claimed for a breach or failure to convey title to a one-fourth or a one-eighth part of the land, and one half of the entire amount, refutes the idea that the parties intended that the second payment of $22,500 should be retained as liquidated damages, by reason of the difficulty of proving the real damages, or as a possible or reasonable approximation to the damages which might arise. If the provision was designed as a forfeiture or penalty, or condition in the nature of such as security, like a bond for $22,500 for the performance of the condition, it could not well be maintained that a liquidation of damages at that sum was intended. There is no absolute rule as to when the sum named-in the contract is to be treated as liquidated damages, but in each case the intention of the parties is to be looked at. Story, Eq. Jur. § 1318. The wide disparity between the sum named and the damages that the parties must have anticipated might occur inclines the court to reject the claim that it was intended as liquidated damages. The principal cases in this state relied upon by the defendants are considered in Manistee Iron Works Co. v. Shores Lumber Co. 92 Wis. 21. It would be clearly unreasonable to hold that the parties intended, in the case of a slight or inconsiderable breach of the condition, that the damages were to be liquidated at the sum of $22,500. Such a position is clearly untenable.

4. The second contract, under date of September 29, 1888, was a new one, and took the place of the former one thereafter, for all purposes relating to the land transaction between the parties. It was expressly so stipulated, in substance, “ that, upon the execution and delivery of this *310contract, said contract of June 16, 1888, shall be void and of no force.” The covenant in the second contract for the delivery, August 15, 1889, of a.n abstract of title to the lands embraced in the deed, showing a perfect title in said Gates at the date of that deed, or to be made perfect prior to the time of making said abstract of said lands, could not be performed without a conveyance of what would be regarded as a marketable title, and it was necessary that it should be shown to be such by the abstract. The deed and contract must be construed together, and the contract was so far executory that the second payment would not become due until after a perfect title was made out in Parmly to the lands, as therein provided. There is nothing in the transaction between the parties to show that the defendants ever waived their right to insist upon such a title, or to accept tax titles or abstracts of such with a deed of the same, irrespective of whether it conveyed what would be regarded as a valid title; nor was it so adjudicated by the judgment in the suit at law by the plaintiff against the defendants. What would be regarded as a good title was of the substance of the transaction. Bateman v. Johnson, 10 Wis. 1; Falkner v. Guild, 10 Wis. 563; Taft v. Kessel, 16 Wis. 273; Davis v. Henderson, 17 Wis. 105.

5. Both parties have pleaded the judgment in the previous action,— the defendants, to show that the plaintiff is barred and concluded from obtaining’ relief in this action; and the plaintiff, as conclusively showing that the deed executed and delivered to Parmly, trustee, which, instead of being a warranty deed as provided in the contract, was a deed with a special covenant only against persons claiming by, through, or under the plaintiff, was full performance on his part. The defendants’ contention is clearly untenable. The judgment they plead was one of peremptory nonsuit against the plaintiff, and left him at liberty to bring another legal action for the same cause (Gummer v. Omro, 50 Wis. 217), but, *311as bis complaint here is upon an equitable cause of action-not made the subject of litigation in the former one, the adjudication is clearly no bar as against the plaintiff. . The part of the judgment upon which the plaintiff relied was rendered upon a counterclaim by the defendants, claiming that the deed from the plaintiff to Parmly, tru‘stee, ought to be reformed so as to insert therein the full covenants of a warranty deed. But the court denied the relief sought, and held only that they were not entitled to have the deed so reformed; and nothing further was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in issue or adjudicated.

6. The evidence does not warrant the conclusion that there ivas any error or mistake in the recital of the contract that §22,500 had been paid, and the circuit court properly regarded that as the principal sum remaining unpaid, subject to equitable deductions. The stipulation in the contract that it should “ be construed as a personal contract between the parties, and its terms and provisions should constitute no lien upon any real estate mentioned therein,” operated and was evidently intended as a waiver or relinquishment, on the part of the plaintiff, of any claim for a vendor’s lien for unpaid purchase money. The plaintiff admits in his complaint that when the contract was read to him his attention was particularly called to this provision; but he claims, substantially, that the defendant Parmly or his attorney misrepresented its operation and effect. The plaintiff was sui juris, and not illiterate. He was dealing with these parties at arm’s length, and he knew the facts, and was bound to know the law. There is no ground whatever shown for holding that the provision in question was improperly or fraudulently inserted, or that full force and effect ought not to be given to it according to its obvious meaning.

7. An important question in this case is whether a tax deed which the statute (E. S. sec. 1176) provides ■“ shall vest *312in the grantee an absolute estate in fee simple in such land, subject however to all unpaid taxes and charges which are’ a lien thereon and to redemption as provided for in this chapter,” — by infants and persons under disability (S. & B. Ann. Stats, sec. 1166),— and which, when duly witnessed and acknowledged, may be recorded “ with like effect as other conveyances of land,” and upon which the short limitation in favor of tax titles has not run, in the absence of any known defect in the tax deed or proceedings, will constitute what can be regarded as a marketable title which a vendee is bound to accept.

The statute^ in substance the same as the present one as to the effect of tax deeds, has been in force ever since 1850; and in the case of Delaplaine v. Cook, 7 Wis. 44, as early as 1856, this statute was sustained and applied, and it was held that the legal presumption attending a tax deed fair upon its face might be rebutted and overthrown by evidence on the part of the party attacking the deed, the onus probandi being upon him. This rule has been repeatedly affirmed. The latest case in which the validity of such a deed was fully considered is Hotson v. Wetherby, 88 Wis. 324; and the validity of the three years statute of limitation, in favor of and against tax deeds, was sustained in Edgerton v. Bird, 6 Wis. 527, and Falkner v. Dorman, 7 Wis. 388, and has been uniformly upheld. At the same time, it has been as constantly affirmed that tax titles, being under a mere naked statutory power, are strieti juris, and that the statutory authority must be strictly complied with or the title will be absolutely void. Potts v. Cooley, 51 Wis. 355, and cases cited. How easily the prima faeie character of the deed may be impeached will appear from the following, among many other adjudications that might be cited: Lain v. Shepardson, 18 Wis. 59; Jarvis v. Silliman, 21 Wis. 599; Iverslie v. Spaulding, 32 Wis. 394; Sprague v. Coenen, 30 Wis. 211; Cotzhausen v. Kaehler, 42 Wis. 332; Scheiber v. Kaehler, 49 *313Wis. 301; Hebard v. Ashland Co. 55 Wis. 148; Ward v. Walters, 63 Wis. 43; Hiles v. Cate, 15 Wis. 91; Hiles v. Atlee, 80 Wis. 220; Easley v. Whipple, 57 Wis. 485; Curtis v. Morrow, 24 Wis. 664. But, if the statute has been in all respects complied with, a tax title is as good as any other. Harding v. Tibbils, 15 Wis. 232. And certainly, after the three years statute of limitation has. run in its favor, there is no reason to doubt such a title. Lindsay v. Fay, 28 Wis. 177; Dean v. Earley, 15 Wis. 100; Knox v. Cleveland, 13 Wis. 245.

Whether such a title is a marketable one is a question in respect to which there is an almost entire want of authority. A tax title has nothing to do with the previous title. It does not in any way connect itself with it. It extinguishes the old title and all liens and equities depending upon it. Lessee of Neiswanger v. Gwynne, 13 Ohio, 74; Ross v. Doe, 1 Pet. 664. As a general rule, a title which is open to judicial doubt is not marketable; but what may be regarded as such doubt is not easily defined, depending much upon the discretion of the court. But in no case will a purchaser be compelled to accept and pay for a title which he can only acquire in possession by litigation and judicial decision, nor where it is evident that his possession must be defended in like manner. He is not bound to buy a lawsuit. Waterman, Spec. Perf. §§ 411 et seq. Specific performance will not be decreed at the suit of a vendor whenever the doubt concerning his title is one which can only be settled by further litigation, or when the court can see that the purchaser will, with reasonable probability, be exposed to bona fide adverse claims on the part of third persons. As the decree in the suit binds only parties to it, and constitutes no obstacle to the enforcement of adverse rights asserted against the title, the legal effect of events or acts collateral to it and capable of destroying its validity can only be determined by another judicial proceeding. Pomeroy, Spec. Perf. § 203; Shriver v. Shriver, 86 N. Y. 575; Ludlow v. O‘Neil, 29 Ohio *314St. 182; Richmond v. Gray, 3 Allen, 27; Gill v. Wells, 59 Md. 492; Dobbs v. Norcross, 24 N. J. Eq. 327; Butts v. Andrews, 136 Mass. 221; Walsh v. Barton, 24 Ohio St. 28. But facts must be known at the time which fairly raise a reasonable doubt and render the title doubtful, and not merely a possibility or conjecture that such a state of facts may be developed at some future time. In Cattell v. Corrall, 4 Younge & C. 237, AldeRSON, B., said in regard to a doubt from a fear of future litigation: There “ must be a reasonable and decent probability of litigation. The doubt must be reasonable, and, so far as it depends upon contingent events and uncertain facts, their occurrence and existence must be fairly probable.” Pomeroy, Spec. Perf. § 204; Vreeland v. Blauvelt, 23 N. J. Eq. 483; Kostenbader v. Spotts, 80 Pa. St. 430, 434. As applied to the case of a tax deed prima facie valid on its face, there must be some known grounds or reasonable belief, and not mere conjecture of the existence of facts which, if shown, would probably destroy the prima facie character of the deed and defeat the title. In Warvelle, Vendors, 52, it is said that “a title raised by tax sale is a purely technical, as distinguished from meritorious title, and depends upon a strict compliance with all the requirements of law, . . . but no presumption cam. be raised to cure radical defects in the proceedings, and the proof of regularity devolves upon the person asserting title; . . . that, owing to the complexity of procedure, the many errors which may arise, a tax title is regarded as among the poorest evidences of title to land, and is always taken with suspicion and viewed with jealousy.” These observatipns are not, we think, applicable under a statute such as ours; and a tax title is just as meritorious in point of law as any other if the requirements of the statute have been complied with. A tax deed being prima facie evidence of title in fee simple, the title is not to be discredited by the courts in the absence of evidence showing a reasonable *315probability of the existence of facts which render its invalidity fairly probable. The only decision, we have met with upon the question whether a tax title is a marketable one where the deed is prima facie evidence of title in fee simple and of the regularity of the proceedings up to and including the execution of the deed, is in Kramer v. Ricke, TO Iowa, 535, where it was held that such a deed was a title that would enable the vendor, upon objection to the title, to recover the purchase money, and that it was for the vendee ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to point out and sustain objections. After much doubt and hesitation, we have concluded that a tax deed, under our statute, fair upon its face, is prima facie a marketable title, which the vendee is bound to accept as such, unless specific objection is made and at the hearing, or upon the usual inquiry or reference as to the state of the title, it is found not free from reasonable doubt.

8. The objection that the abstract tendered at the trial, which shows that the objection of want of title to many of the tracts conveyed to Parinty, trustee, had been removed, was not in time, is untenable. It is not claimed in this case that time was made, by express stipulation or otherwise, of the essence of the contract; and in such a case, if the vendor is unable to show good title at the commencement of his suit, it is sufficient if he perfects it before the final hearing or the report on title by the master or referee. Pomeroy, Spec. Perf. § 3T6, and cases cited; Beach, Mod. Eq. Jur. § 612. Inasmuch as no such inquiry was directed here, it seems to be within the spirit of the rule to allow the abstract to be tendered at the trial, and the delay will be held immaterial, except upon the question of interest, if the vendor can make out his title at the time of the decree. Jenkins v. Fahey, 73 N. Y. 355; Pierce v. Nichols, 1 Paige, 244; Brown v. Haff, 5 Paige, 235.

9. A conveyance of all the lands included in the agreement was executed and delivered to the defendant Parmly, *316trustee, at the time of tbe execution of the second contract, which was to be performed in the manner already stated: This fact, taken in connection with the express stipulation waiving the vendor’s lien for unpaid purchase money, clearly shows that it was intended that the grantee should have immediate possession, with the right to sell and convey the lands at will, and that he was to come at once into the full enjoyment of the estate stipulated to be conveyed, but that the time for making the title thereto was to be extended to the 15th of August, 1889, when the abstracts showing title were to be delivered. The lands were purchased evidently for speculative purposes, and not because of their particular adaptation to any immediate use to which the vendees desired to devote them. It was stipulated in the agreement, in substance, that no part of the second instalment should become due or payable until one year from the date of the furnishing by the plaintiff of the abstracts showing perfect title to the lands, when $‘7,500 of said instalment was to become due without interest, and a like sum one year thereafter, with interest at the rate of six per cent, for said period of one year, and $7,500 two years thereafter, with interest at the rate of six per cent, for said period of two years. Inasmuch as it appears that, up to the time of the rendition of the judgment appealed from, the plaintiff had failed to furnish such abstract showing title as required by the contract, no part of the second instalment of $22,500 has become due or payable, and by reason of that fact, according to the stipulation of the agreement, that sum did not bear interest. The only relief to which the plaintiff can possibly be entitled is to have adjudged to him, on equitable grounds, the payment of such instalment, less such equitable deductions and allowances, by reason of the failure of title to portions of the land, by way of compensation to the defendants, as it shall appear ought to be made.

10. We have arrived at different conclusions from the *317circuit court as to tbe deductions and allowances to be made to the defendants, which will‘now be stated. The contract provided that “ if the said title to the said lands as to 800 acres only, or less, shall prove or be shown by such abstracts to be not perfect in said Oates or said Parmly, trustee, the latter shall be allowed the sum of $5 per acre for each forty acres of said 800 acres to which the title shall so prove defective, and as much more than $5 per acre as such lands ‘shall be actually worth.” This was manifestly agreed upon as the rule of damages, and not by way of penalty or forfeiture. The circuit court found the title conveyed defective to the extent only of 760 acres, 360 of which were worth $8 per acre, or $2,880; and the value of the other 400 acres was fixed at $5 per acre, under the contract, or $2,000,— in all, $4,880. Put there should be a further allowance of $5 per acre for one forty to make up the entire 800 acres, requiring $200 to be added, making the deductions for the 800 acres $5,080. After a careful examination of the record, we find that the title to 2,141 acres, in addition to the 800 acres provided for by the contract, was defective, and not such as the defendants were ■ entitled to receive under the contract, after allowing the plaintiff the benefit of all corrections and perfecting of title shown by the abstract produced at the trial. A list of such lands will be filed and remitted to‘the circuit court with the mandate herein, to the end that, upon a reference for that purpose, it may be ascertained what allowances or deductions from the unpaid purchase money shall be made on this account, there being no sufficient evidence in the record upon that subject. The defendant Parmly, as trustee, at the hearing of such reference, is to tender and deliver to the plaintiff a quitclaim of all right, title, and interest in or to the lands the title to which has been found defective and insufficient, acquired by, through, or under the said plaintiff by virtue of said contract dated September 29,1888, and the deed thereunder *318set out in the complaint, either directly or indirectly, upon paying to or crediting tbe defendants with all sums they have paid for taxes, and interest thereon from the time of such payment. The rule of damages to be applied is stated in Semple v. Whorton, 68 Wis. 626, and the defendants are to be allowed such fractional part of the whole consideration agreed to be paid as the value, at the time of the purchase, of the tracts to which the title is found defective and imperfect bears to the value of the whole 20,000 acres agreed to be conveyed, with interest thereon from the 15th day of August, 1889, at which time there was a breach of the contract on the part of the vendor by failing to make out his title to these lands according to its provisions; but for a period not exceeding six years. Such interest is to be allowed upon the ground that at the last-mentioned date the defendants were, by the contract, to have the beneficial use and enjoyment of these several tracts, and the right to sell and convey the same, as well as the, use of the lands, or interest on the proceeds of their sale, so as to give them the full benefit of their contract and place them as near as possible in the same condition as if the plaintiff had promptly performed on his part. The provision in the contract -whereby the plaintiff agreed that, “ if the amount of the land shall fall short of 20,000 acres, to pay $5 per acre for each acre it shall fall short,” which would amount to $100,000 if the failure of title had extended to all the lands, Avhereas the purchase price was only $45,000, cannot be considered as a stipulation for liquidated damages, but is in the nature of a penalty; and the amount of deductions or allowances to the defendants cannot extend beyond the actual value of the tracts as to which the title was defective, to be ascertained in the manner above indicated.

As to quite a number of such ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tracts, the plaintiff had previously made valid contracts of sale to others of the timber standing or growing thereon. These contracts passed an *319interest in these lands to the several parties with whom they were made (Young v. Lego, 36 Wis. 394; Daniels v. Bailey, 43 Wis. 566); and, as there was no competent evidence to show that such interests had ever been surrendered or released, the title was, to this extent, defective. The court received evidence tending to show that the parties holding these contracts had cut off the timber to which they were entitled, and held that the outstanding contracts constituted no defect of title; but as the persons holding them were not parties to this action, and could not be concluded by a finding or judgment in. it, it is plain that the objection to the title was not removed. Beach, Mod. Eq. Jur. § 610; Fleming v. Burnham, 100 N. Y. 1, 9; Abbott v. James, 111 N. Y. 673; Chesman v. Cummings, 142 Mass. 65, 68; and cases hereinbefore referred to on this subject. ¥e do not include in this category cases where the time Avithin which the timber AVas to be cut and removed had been limited to a period which had already expired.

As to another group of tracts, called the “ Atlee Lands,” it was shown that the tax deed under which the plaintiff claimed to make title was void for the reason that the lands were not, as the statute requires, advertised to be sold “at public auction.” Atlee brought an action to recover the lands, and it was compromised by Parmly, trustee, quitclaim-ing the lands to him for $184.37, while acting in good faith on the theory, induced by the plaintiff’s conduct, that the title was bad. The plaintiff, having certain tax certificates on these lands belonging to the defendant Parmly, trustee, and held with the view to perfect title, drew and retained certain redemption money thereon, to the amount of $64.01, which should be deducted from the $184.37; and the balance, $120.36, should be charged to the defendants in the adjustment of the final balance herein.

Of the lands embraced in tax deeds which were void on their face, having been executed before the time for redemp*320tion bad expired, and under which the plaintiff claimed to make title, as to four tracts the title has failed, but as to 920 acres included in such deeds the title was subsequently perfected. The court erroneously excluded these deeds; but, as the bill of exceptions shows that they were incurably void, the question is properly before the court, and the deeds were offered before the plaintiff had tendered his last abstract, and were not too late. There were other tracts where the tax titles relied on were void for the reason that the lands were not subject to taxation; and as to very many others the titles appeared to be in other parties, who had not conveyed either to the plaintiff or to Parmly, trustee, his grantee; and as to still other tracts the testimony of the plaintiff shows that the tax deeds relied on did not convey any title to him or either of the defendants.

The title to the lands known as the “Northwestern Lumber Company Tract” seems to have been perfected; but the allowance made to the defendants for 700,000 feet of timber cut off these lands, in performance of the plaintiff’s contract with that company, and after he had made a deed of the same to Parmly, trustee, according to competent and uncon-tradicted evidence should have been 2,000,000 feet, of the value of $4,000, for which sum the defendants are to be allowed accordingly. The evidence of the plaintiff was that he did not know what the amount thus cut from said lands was, but that he settled with the company for 700,000 feet. This was not competent evidence upon that subject.

The allowance to the defendants for $206.93 for money paid to redeem portions of the lands from tax sales is to stand as made by the circuit court.

11. The evidence to show a breach of the guaranty in the contract that, at the time it was made, there were 10,000,000 feet of pine timber and lumber, and 15,000,000 feet of hardwood timber and lumber, including basswood, on the lands, to the defendants’ damage, is too vague, uncertain, and un*321•satisfactory to justify any allowance for damages under their •■counterclaim in this respect.

Upon taking and stating an account showing a balance in favor of the plaintiff according to the principles thus settled, •:he is to have a judgment therefor in his favor, without interest and without costs; but the defendants are to be ¡.allowed the proper costs of the reference herein directed.

’ The voluminous character of the record and printed case, ;and the wholly unnecessary length of the appellants’ brief, ■have rendered the examination and decision of the case unusually difficult and laborious. In the taxation of costs, ^allowance will be made for only forty-five pages of the 189 ■of the principal brief and reply of the appellants.

It follows that the judgment appealed from must be reversed.

By the Court.— The judgment of the circuit courtis reversed, and the cause is remanded for further proceedings in -accordance with the opinion of the court.

Newman, T., took no part.

The following opinion was filed May 22, 1896:

Pinney, J.

The plaintiff, as well as the defendants, has ¡moved for a rehearing, but each for different reasons. The ■defendants’ counsel have discussed anew the leading questions involved in their appeal, but we see no reason for departing from any of the legal conclusions announced in the opinion. The defendants cannot now be allowed to rescind •the contract. They made no case in their answer and no ■ claim in it for rescission. Manifestly, the stipulation in the ■ contract that it should “ be construed to be a personal contract between the parties ” was not intended to preclude the plaintiff from maintaining an action upon equitable •.grounds for the recovery of unpaid purchase money. Full *322effect Ras been given to that stipulation in bolding that be. bas waived tbe vendor’s lien for tbe unpaid purchase money.. It was pointed out that tbe intention manifested by tbe deed and contract was that tbe grantee should have immediate possession of tbe lands described therein, with the-right to sell and convey tbe same at will, but tbe unpaid, purchase money was not to become due until one year after tbe date for furnishing tbe abstract showing perfect title to tbe land, and that, according to tbe terms of tbe contract,, tbe unpaid purchase money bas not become due at law. Our attention is now called to tbe fact that tbe defendants were-entitled to interest at tbe legal rate on tbe $4,000 allowed for tbe timber cut off tbe lands known as tbe “ Northwestern Lumber Company Tracts,” as defendants were entitled to that amount as constituting a part of tbe land sold to. them. Tbe plaintiff bas been charged for receiving and improperly retaining this money, when it ought to have been paid over at once to tbe defendants. We think that tbe defendants’ contention is correct, and that they are entitled to have interest on tbe $4,000 from tbe time tbe last sum was paid to the plaintiff by tbe North western Lumber Company, and tbe direction in respect to tbe reference in tbe opinion is modified accordingly.

Both parties have presented points on these motions, apparently upon tbe supposition that they are to be allowed to. go again into tbe merits of tbe case. This is not permissible. The case, as to all questions embraced in tbe record, except, as otherwise stated in tbe opinion as modified, is concluded. If tbe parties failed to produce proper or sufficient evidence, it is now too late to supply tbe defect. This court can. act only upon tbe facts contained in tbe record, and cannot review tbe finding of tbe trial court as to tbe facts, unless tbe points made are presented by proper exceptions to such, finding.

It is insisted by tbe appellants that they did not under*323stand that the entire equities of the case were being tried ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in the circuit court, but that only certain leading questions were to’ be heard, and then a reference was to be had, upon which proofs upon the different branches of the case, in detail, were to be produced. There is nothing in the record to warrant this contention. If there was any such mistake or misunderstanding in this respect, application should have been made to the circuit court to correct it. Some evidence appears to have been directed to every branch of the case, and parties cannot be allowed to experiment with the court, and retry cases, simply because they are disappointed at the result and think that they may be able to make a better showing upon another trial. No legal ground is apparent for opening the case upon the merits for further proofs.

The plaintiff has no ground of complaint for being charged with the entire costs of the reference . ordered, and of this litigation. Had he faithfully performed his contract, there is no reason to suppose that this litigation would ever have occurred. The fault is wholly his own, and he has no right to complain of the consequences. Nor is he in any position to complain of the allowance of $4,000 for timber cut and taken off the lands. He did not see fit to produce any evidence on the question which a court could consider, and the defendants did, and the result arrived at must stand. By the decision of this court, the allowance of $4,880 for the value of the 760 acres to which the plaintiff’s title proved defective is to stand. Compensation was still to be made for forty other acres, to make up the 800 acres specified in the contract. The provision in question is for the benefit of the defendants, and they may elect which forty on the list is to be taken to make up the quantity specified, for which $5 per acre, and what it may be worth over that sum, is to be allowed to the defendants.

Much criticism has been directed in respect to the list of lands for failure of title to which allowances by way of de*324duction are to be made to the defendants. Considering the character and condition of the record, it is not surprising that errors have intervened in respect to a few of the tracts. We find that one forty-acre tract was by mistake omitted from the list already filed, and it will be added at the foot. Another forty (the S. E. i of the S. E. \ of section 3, town 26, range 3) had been already included in the list of the trial court of lands to which titles were defective, and will be stricken off the list. As to certain other forty-acre tracts, the plaintiff’s title was found defective, and it is now pointed out that the record shows that the defendants have since perfected their title to these tracts. They are entitled to deductions on account of these tracts to the amount they have paid to perfect their title to them, not exceeding the sum they would otherwise be entitled to had the title in ■each instance not been thus perfected, with the reasonable and proper costs and expenses attending the perfecting of such titles. If it shall appear that the title to any of these lands, a special list of which will be at the foot of the former one, has been perfected by, or at the proper cost and expense of, the plaintiff, then no deduction or allowance will be made to the defendants therefor; but the case will not be opened to allow the plaintiff to show that the title to any of the other lands is not defective, or, if so, that it has been perfected, nor to allow the defendants to show that the title to any other tracts is defective.

With these modifications of the mandate, both motions for a rehearing will be denied, but without costs; each party to pay the clerk’s fees on his motion.

By the Court.— Ordered accordingly.