220 Wis. 91 | Wis. | 1936
It suffices for a consideration of the questions involved on the appeals herein to note, at the outset, the following facts which were established by evidence that is undisputed in many respects: On Saturday, July 7, 1934, the plaintiffs and Sladky duly entered into a contract which was drafted by Robert G. Nelson, a licensed real-estate broker, whom Sladky had engaged. Under that contract, Sladky agreed to convey his farm, including personal property and crops, to plaintiffs in exchange for their house and lot in Racine, and five shares of certain bank stqck, and their as
The contract provided that: “. . . The deal is to be closed when abstracts are posted to date. Possession of farm given as soon as Mr. Sladky can gain possession of his Geneva street house.” By July 9th, Nelson had the abstracts of title extended and delivered plaintiffs’ abstract to Edmund O. Gilday, who was Sladky’s attorney; and the latter’s abstract to Louis F. Quinn, the attorney for plaintiffs. Under arrangements made between the parties, plaintiffs had moved five loads of their household goods to Sladky’s farm by Wednesday, July 11th, and he had moved household effects to plaintiffs’ city property for storage until he could occupy his Geneva street house. On July 11th, Gilday told Sladky that he had just glanced at plaintiffs’ abstract and that there was a “shadow” on the title. That evening, when plaintiffs brought another load of furniture to Sladky’s farm, he told them to “hold off,” that they shouldn’t haul any more, and that the “papers would cost too much.” He was very abrupt, and then went into the house, slammed the door, and refused to talk to plaintiffs. On July 14th, they went to the farm and told Sladky’s mother that they wanted to see him. She replied that he was away and that they would have to see his lawyer, Gilday. Thereafter Sladky refused to talk to plaintiffs. On July 18, 1934, Gilday wrote Sladky that in his opinion plaintiffs’ title was not marketable because of six imperfections which appeared in plaintiffs’ abstract; and on
On August 20, 1934, plaintiffs brought this action for specific performance. The issues were tried on January 15, 1935, but, because of the request of defendants’ counsel for additional time to file briefs, the court’s decision was delayed until April 26, 1935. On April 30, 1935, findings of fact and conclusions of law were filed, and on May 11, 1935, judgment was entered for specific performance, with a proviso that, if Sladky gave notice to plaintiffs that he desired to have them correct certain matters which he had claimed constituted imperfections in title, then the plaintiffs should make those corrections within fifteen days; and that, thereupon, plaintiffs could obtain an order showing that fact. Although no such notice was given by Sladky, the court, on June 28, 1935, ordered the case reopened for taking testimony in respect to the plaintiffs’ correction of those imperfections, and, on July 12, 1935, adjudged that the corrections had been made by the plaintiffs pursuant to the judgment, and that the abstract of title, as extended, showed that proof of those corrections had been recorded.
"... The law will not declare an agreement void for uncertainty when the light which contemporaneous facts and circumstances furnish renders the description definite and certain. [Citations.]
“A description which can thus be made certain by proof of an extrinsic fact referred to in the agreement must be regarded as sufficiently certain to enforce specific performance.”
In accordance therewith, this court said, in Inglis v. Fohey, 136 Wis. 28, 32, 116 N. W. 857:
“. . . Where parties have attempted to reduce an agreement to writing, and such writing is in some respects indefinite or ambiguous, the contract does not necessarily fail, nor will a party suing upon it be denied relief. If, by aid of evidence showing the situation and surroundings of the parties at the time, and their subsequent acts, if any, construing the terms of the writing, the court can with reasonable certainty determine the meaning intended by the parties, the court will not allow the contract to fall, but will construe it in the light of such evidence and enforce its terms as so construed, if there be no other fatal objections to it. . . . ”
To the same effect, see Messer v. Oestreich, 52 Wis. 684, 689, 10 N. W. 6; Whitney v. Robinson, 53 Wis. 309, 314, 10 N. W. 512; Parkinson v. McQuaid, 54 Wis. 473, 484, 11 N. W. 682; Meade v. Gilfoyle, 64 Wis. 18, 24 N. W. 413; Combs v. Scott, 76 Wis. 662, 673, 45 N. W. 532; Kipp v. Laun, 146 Wis. 591, 131 N. W. 418; Hopfensperger v. Bruehl, 174 Wis. 426, 183 N. W. 171; Spence v. Frantz, 195 Wis. 69, 217 N. W. 700; Moayan v. Moayan, 114 Ky. 855, 72 S. W. 33, 60 L. R. A. 415, 423; Pomeroy, Spec. Perf. (3d ed.) § 90.
Sladky further contends that the plaintiffs were not entitled to specific performance because, due to defects in their title, they could not perform the contract within a few days,
“Where time is not of the essence of the contract and the thing to be done can be as well done at a later as an earlier day without detriment to the party for whom the thing is to be done, the delay will not prevent specific performance. It is the modern tendency, especially in equity, not to treat time as of the essence unless there is some express term in the contract so providing. 13 C. J. 686. ...”
However, they contend that, under the evidence, Sladky comes within the qualifications stated by this court in the next sentence after the foregoing quotation; and subsequently stated in Buntrock v. Hoffman, 178 Wis. 5, 13, 189 N. W. 572, in the following manner:
“In the absence of express language making time of the essence of the contract it is sometimes difficult to determine whether it was the intention of the parties to make time of the essence or not; it then oftentimes becomes necessary to consider the surrounding facts and circumstances, the situation of the parties, and the acts of the parties with respect to the subject matter. Each case must be decided upon its own circumstances. Although time is originally of the essence of the contract, a strict performance may be waived. ‘The subsequent conduct of the parties may also amount to a con*99 struction by them of the original contract, and sho.w that they understood and regarded that time was, or was not, of its essence.' 39 Cyc. 1341, 1342, and cases there cited.”
In support of that contention, it is claimed that the fact that time was of the essence of the contract is proven by evidence to the effect that the plaintiffs knew that, because Sladky’s mother was very ill, it was his intention to get her off the farm as soon as he could obtain someone else to take it over; that, therefore, immediately after the contract was signed, the abstracts were posted and delivered to the attorneys on July 9th, and the plaintiffs, in anticipation that the deal would be closed in the course of a few days after the examination of the abstracts, had moved five truckloads of their personal property to the farm on July 9th and 10th at Sladky’s request, and he, to make room therefor, had temporarily moved some of his household effects to the city property with the intention of taking them to his Geneva street house, which was being vacated for occupancy by him and his mother and sister; that Gilday, by July 11th, had informed Sladky and Nelson that there were defects in plaintiffs’ title and Sladky told the plaintiffs that night to “hold off” because of such defects; that Sladky on July 19th, upon being advised by Gilday that the plaintiffs could not deliver good merchantable title within the time contemplated by the parties in closing the deal, had decided to rescind the contract because he could not wait very long; that he did wait until July 27th, and, upon the failure of plaintiffs’ attorneys to attempt to cure the defects by that date, he rescinded the contract; that, upon realizing that the plaintiffs could not complete the transaction within the time anticipated by him, Sladky decided to obtain someone else to take over the farm, and advertised the sale or rental thereof on July 23d; that he leased it to the defendant, Smerda, on August 10th, and moved with his mother and sister to the Geneva street house.
“If the delay arises from a defect in his title, which the vendor finally cures, or from a difficulty in making the title good — such as the vendee has a right to demand — for example, in obtaining proper evidence, clearing off incum-brances, getting in outstanding estates, and the like; and time is not an essential element of the contract, either from express stipulation, or from the nature of the subject matter or object of the agreement — then the delay thus occasioned, or the lapse of time while the vendor is engaged in making his title good, will not prevent him from obtaining a decree of specific performance against the purchaser. The doctrines of the equity courts are satisfied if the vendor is able to procure and give a good title at the time of the decree even though he could not do so at the time of commencing his suit.”
This court said, in Gates v. Parmly, 93 Wis. 294, 315, 66 N. W. 253, 67 N. W. 739:
“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 Parmly, 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. § 376, and cases cited.; Beach, Mod. Eq. Jur. § 612.*102 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 (N. Y.), 244; Brown v. Haff, 5 Paige (N. Y.), 235.”
See also Maryland Construction Co. v. Kuper, 90 Md. 529, 45 Atl. 197; Louis K. Liggett Co. v. Rose, 152 Md. 146, 136 Atl. 651; Reformed Protestant Dutch Church v. Mott, 7 Paige (N. Y.), 77, 85; McKevitt v. Sacramento, 55 Cal. App. 117, 203 Pac. 132; McNally v. Palmer (N. J. Ch.), 100 Atl. 335; Oakey v. Cook, 41 N. J. Eq. 350, 7 Atl. 495; Van Riper v. Wickersham, 77 N. J. Eq. 232, 76 Atl. 1020, 30 L. R. A. (N. S.) 25; Buckhorn Coal & Lumber Co. v. Lewis, 232 Ky. 415, 23 S. W. (2d) 596; Woodman v. Blue Grass Land Co. 125 Wis. 489, 497, 103 N. W. 236, 104 N. W. 920; and Douglass v. Ransom, 205 Wis. 439, 237 N. W. 260.
In view of Sladky’s arbitrary refusal on July 11, 1934, to confer with the plaintiffs and allow them a reasonable opportunity to perfect their title, they were not required, under the facts and circumstances in this case, to take further steps to remove the alleged imperfections, until there was an interlocutory adjudication that they were entitled to specific performance upon the removal thereof. As was said in Maryland Construction Co. v. Kuper, supra (p. 199), in justification of the rule granting relief to a vendor if he is ready to furnish a clear title at the time of the final decree:
“. . . If this were not so, an owner of land who had incumbrances upon it might pay them off for the purpose of giving the purchaser a clear title and then not be able to enforce the contract of purchase, or he might be subjected to heavy costs in order to have his title cleared and then not be able to require the purchaser to perform his part of the contract. ...”
"... 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, 70 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.”
See also Hart v. Smith, 44 Wis. 213, 229; Bemis v. Weege, 67 Wis. 435, 30 N. W. 938; Emerson v. McDonnell, 129 Wis. 67, 107 N. W. 1037; Allen v. Allen, 114 Wis. 615, 91 N. W. 218; Baker L. & T. Co. v. Bayfield County L. Co. 162 Wis. 471, 156 N. W. 459.
Gilday’s fourth, fifth, and sixth objections relate to deeds dated in the years from 1874 to 1899. During those years the title was conveyed by a deed executed on February 19, 1874, by Charles J. F. Schroudenbach, a Catholic priest, to John Martin DeHenni, Catholic bishop of Milwaukee and his successor in office, in trust for the exclusive use and benefit of the Roman Catholic St. Patrick’s church in Racine. That deed was given before the incorporation of that church was authorized by ch. 37, Laws of 1883; but, under that enactment, it was incorporated in 1883, under the name of “St. Patrick’s Congregation.” On May 27, 1883, Rev. Schroudenbach executed a quitclaim deed to Michael Heiss, archbishop of Milwaukee and his successor in office, to render of no effect whatever the conditions imposed by his deed
The trial court said that those objections are “technical, inconsequential and do not render the title unmerchantable.” That conclusion was evidently based on the proposition that, in order to render a title unmerchantable, alleged defects must be such as “will cause a reasonable doubt and just apprehension in the mind of a reasonably prudent and intelligent person, acting upon competent legal advice, and prompt him to refuse to accept” a title. Douglass v. Ransom, supra, p. 446. However, if there was occasion for such doubt or apprehension in any of those respects, Sladky was fully protected by the proviso in the interlocutory judgment giving him the right, if he desired, to have the plaintiffs, by recorded proof, entirely remove whatever basis there was for
It is also contended that performance by Sladky had become impossible and could not be enforced in equity because, after his attempted rescission on July 28, 1934, he had entered into a bona fide lease with the defendant, Smerda, for a period of three years with an option to the latter to purchase the farm. On that subject the court’s adjudication was: “That any rights that the defendant, Anton Smerda, may have in said premises by virtue of the lease to him, or otherwise, are subject and subordinate to the rights of the plaintiffs.” That conclusion was warranted by credible evidence to the effect that Sladky told Smerda about the deal with the plaintiffs before he leased to Smerda. It may also be deemed of some significance that Sladky reserved the option in the lease to terminate it if the premises were sold during the term thereof. As Smerda was chargeable with knowledge of plaintiffs’ prior contract, and their equities in the farm by reason thereof, the court rightly concluded that his leasehold was subject to their rights. (Webb v. Mason, 152 Wis. 19, 23, 139 N. W. 442.) Under those circumstances, there was
By the Court. — The judgment entered on May 11, 1935, and the supplemental order entered on July 12, 1935, are affirmed.