210 Wis. 239 | Wis. | 1933
The action was brought by plaintiffs for cancellation of a land contract entered into between plaintiffs and the defendant Crestwood Realty Company, which latter company assigned its interest to the defendant Herbert Finance Company. The complaint alleges that the Crest-wood Realty Company had platted certain lands known as Crestwood Addition; that this company, through its officers, represented to plaintiffs “that the said premises were restricted and set aside for business purposesthat plaintiffs, in reliance upon these representations, entered into the land contract in question, whereby they agreed to purchase and pay for the premises involved; that in October, 1927, the county of Milwaukee re-zoned the premises and restricted their use to residential purposes; that in February, 1928, the Crestwood Realty Company transferred its interest in these premises to the Herbert Finance Company, subject to the land contract, and that the Herbert Finance Company is unable to give plaintiffs such a title as was contemplated
This court has recently held, in Miller v. Milwaukee Odd Fellows Temple, 206 Wis. 547, 240 N. W. 193, that the restrictions created by a zoning law are not incumbrances. Nor can this case rest upon misrepresentations by the .vendor or agreements in the land contract. There was no misrepresentation of a present existing fact. There was no understanding that the premises, under all circumstances and conditions, were to be available for business uses when conveyed to vendees. There is nothing in the contract upon which to base the conclusion that the vendors accepted the risk that a subsequent zoning law might restrict the use of the premises. The only agreement was that the property would be conveyed to plaintiffs free from any restrictions created by defendants that would interfere with its use for business purposes. The defendants can convey an unin-cumbered title, and have themselves created no restrictions that would interfere with its contemplated use.
The appeal presents the further question whether, because of the fact that the object of the contract, so far as plaintiffs are concerned, can no longer be realized, the equitable remedy of rescission should be granted.
In Anderson v. Steinway & Sons, 178 App. Div. 507, 165 N. Y. Supp. 608, the vendor sought specific perform-
From what has been heretofore stated, it follows that the order must be reversed.
By the Court. — Order reversed, and cause remanded with directions to sustain the demurrer.