149 Wis. 251 | Wis. | 1912
Lead Opinion
Tbe findings of fact seem to have such basis in tbe evidence as to preclude disturbing them in any material particular. Counsel argue to tbe contrary at some length by a process of reasoning and method of analysis some
The findings indicate this general situation: When the action was commenced appellant had the legal title to' the property in question with the right of possession as claimed, unless respondent had a superior right, in that she was the equitable owner and was entitled to retain possession as against, appellant and to be clothed with legal ownership.
Since appellant took title from Erickson with efficient notice on his part of the relations of respondent to the property, her rights therein were not affected by the change in legal ownership between the administrator’s deed and the commencement of the suit. If one buys real estate of another while the subject of the transaction is in possession of a third person, he is presumed to act with notice of all facts which such situation would suggest, or which could be obtained by diligent inquiry. Martin v. Morris, 62 Wis. 418, 22 N. W. 525 ; Roberts v. Decker, 120 Wis. 102, 97 N. W. 519.
There can be no question but that respondent violated the-statute, sec. 3914, Stats. (1898), prohibiting an administrator-from directly or indirectly purchasing or being interested in the purchase of any real estate sold by him. It is provided that all sales made contrary to such prohibition “shall be-void.” So respondent committed a wrong in law without, moral turpitude in the particular circumstances of the case. However, absence of any bad intent or actual injury to any one the statute was designed to protect, does not affect the nature of the title created by the improper transaction. By
In further discussing the case it must be appreciated that the word “void,” as used in the statute, means voidable. Until a sale made in violation of it be set aside in a proper action, the purchaser is vested with the legal title to the land and he cannot be divested thereof except in such proper action brought within a proper time by a person entitled to challenge, efficiently, the validity of the sale. McCrubb v. Bray, 36 Wis. 333; Martin v. Morris, 62 Wis. 418, 22 N. W. 525; Gibson v. Gibson, 102 Wis. 501, 78 N. W. 917.
The defect in the sale here, even as to a person the statute was designed to protect, was cured before commencement of this litigation by sec. 3918 of the Statutes limiting the operation of sec. 3914, in the circumstances of this case, to five years next after the sale. Moreover, the sale being voidable only, by force of the policy having for its object the protection of persons who might be injured because of being interested in an estate or claiming in some way under the dev-isee, — persons within the contemplation of sec. 3918, neither Erickson nor appellant is within the saving grace of the law. Eurthermore, appellant does not base his claim of right upon the invalidity of the sale. He claims under it.
So the character of the sale to Erickson does not cut any figure in this case, except as it has to do with the status of respondent in a court of equity. She, in effect, appealed to* that jurisdiction in defense and for affirmative relief because1 of an alleged wrong, made possible by her own violation of law. In such circumstances, under the peculiar facts, did she come into such jurisdiction with clean hands, under the rule
It is often, rather illogically, said that a person cannot successfully appeal to a court of equity unless he, himself, is without fault. If that were literally true, great wrongs, cognizable only in that jurisdiction, would go unredressed because of the victim being guilty of some fault of insignificant character as compared with that of his adversary, as in this case. Here there was reprehensible moral turpitude, as doubtless the trial court looked at the matter, — such that appellant, standing in the shoes of Erickson, should not reap the fruits thereof by shielding himself behind the really harmless fault, as to him; in plain violation of a quite dominating rule in equity, that no one can profit by his own wrong. Nemo ex suo delicto meliorem suam condilionem facere potest. All such rules are subsidiary to the all-pervading major principle, “Equity opens its doors whenever necessary to prevent fraud and injustice and where the relief asked conforms to the principles of rectitude and honesty.” Warden v. Fond du Lac Co. 14 Wis. 618, 620.
So, within a broad range, it rests in the conscience of the chancellor, whether, under the particular circumstances of the particular situation, equity ought to reach out its protecting arms in defense or redress. The seeker for such protection may not be wholly without fault and yet be entitled to some consideration. Do the principles of rectitude and honesty which should be the guide of human conduct, require or justify equitable interference? That is the test. There is no such stern rule as would close the eyes and ears, so to speak, of equity to the picture or cry of a distressed petitioner merely because of his hands not being entirely clean.
In the light of the foregoing, it is considered that the trial 'court did not go astray in deciding not to reject respondent’s claim because of her violation of the statute. As said before, substantially, it was a wrong without injury to any one con
True, there is a conflict, more or less serious, as to some of the evidentiary circumstances referred to, and there are no specific findings as to some of them; but, by fair inference,
The logical result of this decision is that the contention of appellant is wholly without equity and, notwithstanding the: initial fault, there is a very strong equity in respondent’s favor. She, in effect, took and retained possession of the property under Erickson. As before indicated, the circumstances, are equivalent to an agreement between the parties, made after the sale, that he would sell to her for the amount bid for-the property. The ratification after the administrator’s sale,, should, if necessary, be deemed, in equity under the circumstances, as giving effect to the arrangement as of the time of the later circumstance. Ratification may relate back or have-effect in 'prcesenii according to the equities of the particular situation.
Thus the trial court was warranted in treating the case as presenting a situation calling for specific performance of respondent’s contract with Erickson. It is quite clear after so much time, during which she occupied the property under such contract, a wrong would be committed against her for which there would be no adequate redress, if redress at all, if she were denied the relief embodied in the judgment.
The foregoing leads to these further observations to guard against its being thought that any feature of the written law has been overlooked.
The case is not one of consideration paid by one, title taken in another and a subsequent attempt to charge the latter as trastee of the former; so sec. 2077 of the Statutes does not apply. Neither is it one of asking for relief on the ground
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). In this action of ejectment it appears without dispute that the respondent Bmma Severson,
We have in this state a statute, sec. 3914, Stats. (1898), which provides:
“The executor, administrator or guardian making the sale . . . shall not, directly or indirectly, purchase or be interested in the purchase of any part of the real estate so .sold. All sales made contrary to the provisions of this section shall be void.”
Where one purchases land in violation of a statute and has the title conveyed to another to evade that statute, there is no resulting trust in favor of the purchaser. Miller v. Davis, 50 Mo. 572; Ottley v. Browne, 1 Ball & B. 360; 1 Perry, Trusts (6th ed.) § 165 and cases; Godefroi, Law of Trusts (3d ed.) p. 240 and cases. A case in point is Higgins v. Higgins, 55
As was said in Sell v. West, 125 Mo. 621, 28 S. W. 969, a similar ease: “Courts of equity have no more right than courts of law to act upon crude notions of what is right in the particular case without reference to established rules and precedents.”
2. We have also in this,state a statute reading as follows (sec. 20YY, Stats. 1898) :
“When a grant for a valuable consideration shall be made to one person and the consideration thereof shall be paid by another, no use or trust shall result in favor of the person by whom such payment is made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.”
The next section provides that such conveyance shall be presumed fraudulent as against creditors of the person paying the consideration, and that a trust shall result in favor of such creditors. See Hamilton v. Wickson, 131 Mich. 71, 90 N. W. 1032; Chantland v. Midland Nat. Bank, 66 Kan. 549, 72 Pac. 230; Garfield v. Hatmaker, 15 N. Y. 475; Baker v. Bliss, 39 N. Y. 70; McPherson v. Featherstone, 37 Wis. 632.
The effect of this last quoted statute in the instant case is. to supplement the first rule stated. The bar of the second quoted statute would not be uplifted by a showing on the part of the respondent of her forbidden transaction with the purchaser at the sale.
3. We have also sec. 2304, Stats. (1898), which requires every contract for the sale of any lands or any interest therein to be in writing, expressing the consideration, and subscribed by the party by whom the sale is to be made. The effect of these statutes and precedents is sought to be obviated in the majority opinion by considering the foregoing facts sufficient to support a counterclaim by the respondent for specific performance of the oral contract mentioned. No such relief was
An executory contract prohibited by statute cannot be enforced. Ætna Ins. Co. v. Harvey, 11 Wis. 394, and cases cited; Clarke v. Lincoln L. Co. 59 Wis. 655, 18 N. W. 492; Menominee River B. Co. v. Augustus Spies L. & C. Co. 147 Wis. 559, 132 N. W. 1118. It is apparently thought that notwithstanding the mandatory terms of the statute first quoted, because this court has construed the word “void” there to mean voidable when applied to an executed conveyance, that this makes some difference. I do not think it does. Many contracts void while executory and incapable of enforcement are after execution voidable only at the instance of a person who is aggrieved by the infraction of the statute. Such is the statute of Elizabeth avoiding conveyances in fraud of creditors, and the statute of frauds, and many others. The refusal of courts to enforce executory contracts like that in the instant case does not turn upon that question at all. I think one would have to search far to find a precedent in addition to the instant case where a court held an executory contract prohibited by statute enforceable in specific performance. To do so is to annul the statute and to hold that a court of equity will enforce that which the statute forbids. It seems to me entirely fallacious to employ the distinction between “void” and “voidable,” sometimes properly made, for the purpose of upholding and enforcing an executory contract prohibited by statute. If these views are correct the undisputed evidence left the defendant estopped by her own deed to claim title to the land in question. Renfrew v. McDonald, 11 Hun, 254; Phillips v. Wooster, 36 N. Y. 412; Pride v. Andrew, 51 Ohio St. 405; Murphy v. Hubert, 16 Pa. St. 50; Broughton
4. With reference to supporting a defense of this In'rid against the grantee by the grantor without legal title but in possession, see'cases in Wait on Eraudulent Conveyances (3d •ed.) § 402, and the whole of eh. XXVI of that book.