11 Wis. 230 | Wis. | 1860
By the Court,
We are of the opinion that the answer in this case does not set up, or state facts sufficient to constitute a defense to the action, The proof could not be broader than the allegations of the answer, and if the allegations failed to show a substantive defense, the judgment must be affirmed. It therefore becomes material to look into the answer and see what it contains.
The answer alleges, in substance, that the note upon which the action was brought, was given as a part of the consideration
It was conceded on the argument, that the bank stood in the place of the original promisee, and that if the matters set
The counsel for the defendant in error contends that this answer is defective in two important particulars: 1, for not alleging that a large part, in value., of the real estate of the corporation, was embraced in the tax deed; and 2, for not averring in a distinct, positive and affirmative manner, that such tax deed was a good and valid deed. He insists that it may well be that a large part of the real estate, in quantity, may have been forfeited by the company, for non-payment of taxes, and embraced in the tax deed; while it would by no means follow that such real estate constituted a considerable part in value of the property of the company. The lands thus forfeited may have been useless or worthless for the purposes of the corporation, while those retained may have given the stock its chief value. It appears to us that there is great force and reason in this criticism upon the answer, and that its allegations are defective for not stating that the tax deed embraced a large part in value of the real estate of the company.
But, in our estimation, the other objection taken to the answer, that it omits to allege in a clear, positive manner, that the tax deed was good and valid, is insurmountable. For it is very clear that unless the tax deed is valid, the title of the lands embraced in it, did not pass to Sweet, and the value of the stock cannot be affected to any appreciable extent by its existence. The language of the answer is a little singular on this point. It is possible the pleader intended to allege, that the tax deed was not only good in point of form, but was a good and valid conveyance in fact, and conveyed the title. But it is not so alleged. The answer states that “the lands mentioned therein were conveyed by a conveyance commonly known as a tax deed, which was executed and de
The proposition which was so fully discussed upon the argument, namely, whether it was incumbent upon Barber to disclose the fact that a tax deed upon the real estate of the corporation existed, which materially affected the value of the stock, and whether by his withholding this information with the intention of injuring the plaintiff in error by obtaining the same price for the stock as though the title were clear, constituted a fraud in law entitling the plaintiff in error to relief, it is not necessary to consider, since this question does not fairly arise upon the pleadings, and therefore we express no opinion upon it.
It was insisted that the withholding this information with such an intent was a fraudulent concealment by the vendor, of a fact which in equity and justice he was bound to disclose, and that the sale was void for that reason. But, as the answer does not necessarily call for an opinion upon this interesting question, we give none.
The judgment of the circuit court is affirmed.