| Wis. | Oct 12, 1886
About the 22d day of April, 1886, one IT. T. Skelton, the husband of Helen M. Skelton, one of the defendants, acted as her agent, and agreed to sell to the respondent the premises in question, belonging to her, for the sum of $6,500, and the sum of $150 was paid down, and the balance was to be paid about the 15th day of May folio wing, and a deed to be executed therefor. The said Helen M. Skelton was informed of said sale on the 2d day of May, and she did not repudiate the same until the 14th of May following; but then informed said respondent that she would not sell the premises for that price, and that her said husband had no authority to sell the same for her, and on the same day she contracted to sell the premises to the appellant Eliza Bartlett for $7,000; and on the next day, •about the same time of the commencement of this action and the filing of the Us pendens, she made to said Bartlett a deed. About the time of the sale to the respondent he ■went into full possession of the premises, except a house on the front end of the lot, and repaired the barn at a cost of $200, and laid a sewer on the premises at considerable cost, and was in the peaceable and notorious possession, and had property in said barn, when the appellant Knight, about the 18th day of May, broke open said barn, removed and changed the locks thereon, and took forcible possession of the premises, and retains and withholds them from the respondent; and, when the respondent attempted to go into said barn, he had him arrested and prosecuted for trespass. Said Knight occupied the house on said premises as lessee of said Helen M. Skelton, and said house was to be delivered to the respondent on said 15th day of May by said contract of sale. The appellant Eliza Ba/rilett, who occupies the adjoining premises, instigated the acts of said Knight in taking such forcible possession of the barn and premises other than the house, and in prosecuting said respondent for trespass. The respondent tenders the purchase money with his said suit, and demands a conveyance.
Most clearly, the defendant did a great wrong in intruding into the possession of said barn and premises after the commencement of the suit for specific performance of the contract. The merits of that suit cannot be determined on such a motion, or on this appeal. The complaint charges that the said Helen M. Skelton made with him (the plaintiff) said contract of sale, and received said $150, 'and is silent as to the agency of her said husband in the matter; and his complaint is duly verified. It is in the affidavit of said Helen M. Skelton only that such agency appears. "What the plaintiff may be able to prove on the trial cannot vet be known. It would seem to have been a most proper case where the matters ought to have remained in statu quo after the suit was brought until after its determination. The respondent was in peaceable possession under his contract, and should not have been disturbed. The plaintiff shows, bjr his complaint, a prima facie right to specific performance, and therefore it is a proper case for an injunction. Fry on Spec. Ferf. sec. 769. The trespass suits certainly ought to have been enjoined, for bringing such suits in another court, involving an inquiry into the merits of the case pending in the circuit court, is transferring the litigation to another court. High on Inj. (2d ed.) sec. 48; Smith v. Finch, 8 Wis. 251. The granting of the injunction was within the sound discretion of the circuit court, and, on the facts, we cannot say that in doing so such a discretion was abused.
By the Gourt.— The order of the circuit court is affirmed.