McFarlane v. Dixon

176 Wis. 652 | Wis. | 1922

Jones, J.

There are certain important facts in this case as to which there is no dispute. The defendants believed that they had the right h> make the contract as the residuary legatees under the will and that they could convey good title. The facts that both lots had been included in the inventory of the deceased and that for some years he had been paying the taxes on the lots, with such other facts as came to their knowledge, were circumstances well adapted to raise the belief that they were within their rights in making the contract.

When plaintiff brought the action for. specific performance he knew that defendants could not give.title to lot 8. In the prayer for relief in the complaint plaintiff demanded that a just deduction “from the purchase money of said two lots be made on account of defendants’ failure of title and inability to convey to plaintiff said lot number 8 and on account of interest on plaintiff’s purchase money which has been idle and on account of street-improvement bonds and liens against said lot number 9, and on account of damages sustained by plaintiff on account of defendants’ failure, refusal, and inability to convey to him said lot number 8, and upon payment by plaintiff of the residue of said purchase money, if any, that said defendants specifically perform said contract as to lot number 9 by a conveyance of said lot to plaintiff and that they furnish to plaintiff an abstract of title showing a marketable title in said defendants of said lot to be conveyed to plaintiff.” This plainly shows that the gist of the action was specific performance of the contract.

One of the court’s findings was:

“That the plaintiff declared upon the trial that he did not desire to rescind the contract but to have it enforced by a conveyance to him of said lot 9, he receiving such credit on the balance of the purchase price as he might be lawfully entitled to by reason of the defendants’ inability to convey to him lot 8.” •

It is true that plaintiff prayed for damages for the failure to perform the contract as to lot 8, and his counsel claim that for such nonperformance he is entitled as damages to the difference in value of the lot on the date of the contract and the date when he tendered the balance of the purchase money. Whether, plaintiff is entitled to such relief is the only issue in the case.

. Since defendants were unable to comply with a substantial part of the contract, plaintiff would have doubtless been entitled to a rescission if he had so elected, but he chose an entirely different and inconsistent remedy. - It has been often decided by this court that when a vendor makes a valid contract to sell land he is bound to know whether he has title, and is answerable in' damages if he is unable to fulfil the contract. In such cases his liability does not necessarily depend on fraud or bad faith. See cases cited in Lee v. Bielefeld, ante, p. 225, 186 N. W. 587. It is also a familiar rule that, where there is an entire failure of title, this is not in all cases a complete defense to the action for specific performance, but the court may retain jurisdiction and give damages as compensation. Pomeroy, Spec. Perf. (2d ed.) sec. 476.

Much greater difficulty arises in cases like the present where there has been a failure of the title as to only a portion of the land conveyed and where specific performance is sought. In an early case in this court it was held that where a purchaser seeks specific performance of a contract and the vendor has not the same interest in the land as that contracted for, or there is a deficiency in quantity, the ven-dee may enforce a performance of the contract by compelling the vendor to give the best title he can and have a just amount abated from the purchase money for the deficiency of title or quantity or quality of the estate. Wright v. Young, 6 Wis. 127. In another action for specific performance where the property sold was represented to contain forty-nine acres but in fact contained about thirty-two and one-half acres, the court followed the rule laid down in the foregoing case and said:

“Where the title fails to only a part of the land conveyed, the grantee may recover, in an action on the covenants of seizin and right to convey, or upon an agreement to convey, such fractional part of the whole consideration paid as the value at the time of the purchase of the piece to which the title fails' bears to the whole purchase price, and interest thereon during the time he has been deprived of the use of such fractional part, but not exceeding six years.” Docter v. Hellberg, 65 Wis. 415, 424, 27 N. W. 176; Messer v. Oestreich, 52 Wis. 684, 696, 10 N. W. 6; Gates v. Parmly, 93 Wis. 294, 66 N. W. 253, 67 N. W. 739; Darlington v. J. L. Gates L. Co. 151 Wis. 461, 138 N. W. 72, 139 N. W. 447.

The cases we have cited are in line with a leading case decided in England in 1775, Flureau v. Thornhill, 2 Wm. Blackstone, 1078, which has been much discussed by the courts and text-writers. Counsel for appellant do not contend that the rule adopted in that case and by this court should be changed, but that it should not be applied in the present case because, it is argued, defendants should have known the state of the title of the land they bargained to .sell. This was equally true in the cases we have cited.

There are undoubtedly limitations upon the rule declared in the English case above cited and in the Wisconsin cases. For example, if the seller agrees to convey land he knows he does not own, or if, after making the contract, he sells to another, or otherwise disqualifies himself to make good his original agreement, he is liable to full compensatory damages, including those for the loss of the bargain. Arentsen v. Moreland, 122 Wis. 167, 99 N. W. 790.

The trial court followed the rule which has long prevailed in this court, and we consider that the facts fully justified the conclusion reached.

By the Court. — Judgment affirmed.