Lead Opinion
The appellant contends that the demurrer to tbe answer and tbe counterclaim should have been sustained, because the facts alléged constitute no defense nor facts constituting an estoppel, nor grounds for affirmative relief upon a counterclaim. Tbe questions on this demurrer involve inquiry as to whether the rights of the parties arising out of the transaction alleged are governed by tbe laws of tbe state of Mississippi or of the state of Wisconsin. Tbe pleading shows that tbe transfer embraces Mississippi lands; that tbe plaintiff is a corporation organized under Mississippi laws and that its officers and stockholders are residents of tbe state of Mississippi; and that tbe defendant is a resident of Wisconsin, where tbe option between him and Carter & Kennedy for tbe sale of tbe lands was made. This option provided that a conveyance under it was to be executed at Milwaukee, Wisconsin, or in Chicago, Illinois. It is alleged that tbe deed in question was actually executed and delivered and tbe consideration paid in Chicago. Tbe allegations
“The general principle of tbe common law is that tbe laws of tbe place where such immovable'property is situate exclusively govern in respect to tbe rights of the parties, tbe modes of transfer, and -the solemnities which should accompany them.” Sec. 424. And: “Tbe same rule would also seem equally to apply to express liens and to implied liens upon immovable estate.” See. also, Dicey, Oonfl. of Laws, rule 151, p. 586. •
Respondent contends that under tbe circumstances of tbe case tbe covenant here in question should be treated as separate and independent from tbe contract of conveyance. We cannot so consider it in view of its nature and its effect upon tbe rights of the parties respecting tbe title to this land. Hence the rule of tbe place governing ordinary commercial contracts (Brown v. Gates, 120 Wis. 349, 97 N. W. 221, 98 N. W. 205) cannot-apply. It is alleged by defendant that all tbe taxes assessed and levied on these lands at the time of conveyance were paid, and that defendant bad no knowledge or information sufficient to form a belief as to tbe allegation in tbe complaint charging that tbe lands were then subject to a tax duly assessed and levied under tbe laws of Mississippi, and that it constituted an incumbrance thereon, and that dec
The plaintiff’s demurrer to the answer and counterclaim relates back to tbe complaint and requires examination of tbe sufficiency of tbe complaint. Lawe v. Hyde, 39 Wis. 345, and cases cited. The question of the sufficiency of the complaint was not specifically presented on appeal in the briefs and arguments. An examination of the complaint discloses that plaintiff seeks to charge defendant with a breach of a covenant in this deed against incumbrances “made or suffered” by the defendant. But the complaint is silent as to whether the incumbrance, which is alleged to have existed at the time of conveyance, did in fact have its inception during the time that defendant was owner of the premises. Nor are the facts alleged in the pleadings sufficient to apprise the defendant of plaintiff’s claim in this respect. We deem such an allegation essential to complete the canse of action attempted to1 be alleged in the complaint.
Counsel for both parties have fully discussed the question of the sufficiency of the answer and counterclaim under the demurrer thereto' and we will therefore proceed to consider them. The answer alleges that Carter and Kennedy wilfully concealed from defendant the facts now alleged by plaintiff as part of its cause of action, namely, that under the laws of Mississippi the annual taxes for 1903 were a lien on the real estate at the time of conveyance, and that the deed covenants against incumbrances of this nature. It is also alleged that they fraudulently represented to defendant, shortly before and at the time of the transfer, that the premises were free and clear from incumbrances, when they well knew that defendant was ignorant both as to the law of Mississippi and
Tbe defendant alleges that be relied upon these allegations, by wbicb be claims to have been fraudulently induced to execute this deed containing a covenant against incumbrances, and therefore asks that tbe deed be reformed so as to express tbe true agreement, without such covenants. While tbe courts of this state cannot reach and modify tbe recorded deed in tbe proper county in tbe state of Mississippi, yet, since plaintiff appears in tbe courts of this state to enforce a right under such a deed against plaintiff, a court of equity may, as against plaintiff, upon such facts being shown, compel reformation of the deed so as to express the agreement actually made between it and tbe defendant. Dickson v. Loehr, 126 Wis. 641, 106 N. W. 793, and cases there cited.
Tbe other questions presented in argument are not properly before us on this appeal and can only arise upon trial of tbe issues of fact raised by tbe pleadings. Considerable attention is given by counsel in argument to tbe effect of tbe law of Mississippi upon tbe covenants in this deed and tbe effect of tbe tax lien law under such covenants. Consideration of these questions should be deferred until proof is made of tbe law of Mississippi bearing on tbe questions raised under tbe allegations of tbe pleadings in tbe case. It seems that such proof is proper under tbe allegations on these subjects. Central T. Co. v. Burton, 74 Wis. 329, 334, 43 N. W. 141; 9 Ency. PI. & Pr. 542, “Foreign Laws; ” 20 Ency. PI. & Pr. 600, 601, subd. 3, “Manner of Pleading Foreign' Statutes,” and cases cited in note.
Tbe court should have sustained the demurrer as a demurrer to tbe complaint. Tbe answer and counterclaim allege sufficient facts to constitute a defense and counterclaim.
By the Court. — Order reversed, and tbe cause remanded for further proceedings according to law; respondent to recover bis costs in this court.
Dissenting Opinion
(dissenting). I concur in the opinion of the'court that the answer and counterclaim are sufficient and that the demurrer thereto was properly overruled; but I dissent from the conclusion that the complaint does not state a' cause of action, and that the demurrer should1 be sustained upon that ground.