17 Wis. 624 | Wis. | 1864
By the Court,
No question of title is presented by this case. The defendant answers that he was let into possession under an executory agreement for the purchase of an undivided half of the premises from the plaintiff. That agreement has not yet been executed. Until it has been, by the making and delivery of a proper conveyance, or until the title is passed by the judgment .of a court of equity, the defendant is in no position to dispute the plaintiff’s right at law. The relation of vendor and purchaser under an executory contract of sale is so far in the nature of a tenancy, that-the purchaser is estopped from denying the title of the vendor so long as he retains possession under the contract. This doctrine is well settled. Lawton vs. Howe, and cases cited, 14 Wis., 247; Jackson vs. Bard, 4 Johns., 230; Jackson vs. Ayers, 14 id., 224; Jackson vs. Camp, 1 Cow., 610; Jackson vs. Johnson, 5 id., 92; Jackson vs. Walker, 7 id., 637; Bowker vs. Walker, 1 Vt., 18; Richardson vs. Broughton, 2 Nott & McCord, 417; Williams vs. Cash, 27 Ga., 507; Woolfolk vs. Ashby, 2 Metcalfe (Ky.), 288. The answer showing that the defendant entered and held under such a contract, no proof of title on the part of the plaintiff was required. In Jackson vs. Ayers, the recovery by the plaintiff in ejectment was sustained upon the agreement entered into for the purchase between the plaintiff and the defendant, which was the only evidence offered. Here the agreement is shown by the answer, the burden of establishing, which is upon the defendant, and is in the nature of an action for specific performance upon the equity side of the court. If the defendant succeeds in establishing the agreement in equity, and likewise shows performance as averred in the answer, title
It is true that the answer contains a general denial of the plaintiff’s title, but that denial is overcome by the special answer, which admits the right of the plaintiff by showing the circumstances under which the defendant entered. Sexton vs. Rhames, 13 Wis., 99.
Judgment reversed, and a new trial awarded.
