| Wis. | Feb 3, 1914
This case does not seem to present any difficulty warranting extended treatment. It cannot well be contended, and is not, that the facts found do not support the judgment. The point made that some material findings are not supported by the evidence, is ruled to the contrary by the familiar principle giving efficiency to trial determinations of issues of fact where there is a fair basis in the evidence therefor.
The point made that the court improperly excluded evi-
The point made that the price of the land, when conveyed to respondents, was reduced some $300 because of the remote chance of Hiram being alive and appearing upon the scene to claim his rights, is likewise unimportant. Respondents, in any event, had no knowledge of the existence of Hiram, and were led, by Mrs. Spaulding, through her representatives, and doubtless by her connivance or consent, to believe that Hiram was dead, or at least had not been heard from for more than ten years, which they knew was false. The fact that, in face of representations which might well have created in the mind of an ordinary careful person the impression that Hiram was dead, — plaintiffs would not accept a conveyance with full covenants without some reduction of the purchase price of the land as security against the remote chance of Hiram having been alive at the time of the death of his father, plainly shows that the sale, even with the small rebate in price, was accomplished by false pretenses which, according to the findings, Addie Morris was just as guilty of as Mrs. Spaulding, if not more so.
There having been an absolute failure of title to the lands, plaintiffs were not required to wait until dispossessed before seeking a remedy to prevent the wrong to them becoming remediless.
The doctrine that one cannot affirm in part and bring an action for rescission in part, but must treat the tainted contract as an entirety, upon which appellant’s counsel relies, citing Grant v. Law, 29 Wis. 99" court="Wis." date_filed="1871-06-15" href="https://app.midpage.ai/document/grant-v-law-6600812?utm_source=webapp" opinion_id="6600812">29 Wis. 99, is familiar. It is good in its place. It has several exceptions which are not mentioned or recognized in Grant v. Law. So, though the case was
Thongh, in general, one may -not af&rm in part and rescind in part, the rule is equitable and ceases to operate where equity requires it to do so, as indicated in Gay v. D. M. Osborne & Co. 102 Wis. 641" court="Wis." date_filed="1899-04-04" href="https://app.midpage.ai/document/gay-v-osborne-8186258?utm_source=webapp" opinion_id="8186258">102 Wis. 641, 78 N. W. 1079; Ludington v. Patton, supra, and other cases. One must distinguish between situations where equity requires the rule to apply and where it requires an exception; and also between an action for rescission and one based on rescission; also between an action for rescission and an action to prevent injury where rescission would not furnish an adequate remedy. One may retain the benefit of a contract and sue for damages because of a breach affecting it in part (McConnell v. Hughes, 83 Wis. 25, 53 N. W. 149), or affirm in part and rescind in part, obtaining a proportionate rebate in the purchase price, where some such course is necessary to conserve the real right of the matter. Gay v. D. M. Osborne & Co., supra. The court there said:
“The right of rescission of a contract for fraud, though a legal right, is based on equitable principles. Therefore the requisites of its exercise should go no further than strict compliance with the dictates of good conscience requires. Eor that reason the exception to the rule of total rescission indicated has become a part of our jurisprudence.”
A proper conception of the real ethics of the law will enable one to perceive that rules áre based on principles of justice and are limited by the effects in that regard. Therefore, when it is said that application of a rule to a particular situation would work injustice instead of justice, especially where the controversy is being dealt with in equity, wisdom will lead one to search for some recognized exception to fit the case and, if none of the particular character can be found illustrated, to classify the circumstances within the broad
It seems clear in the circumstances of this case, that respondents had no way of adequately protecting themselves except by an action to cancel the note and mortgage. Nothing was received from Addie Morris, therefore there was nothing to return to her. Willingness to do equity was shown, in that readiness was exhibited to surrender the land to the true owner. No surrender to Mrs. Spaulding was possible because she was dead. The only thing open to respondents, under the circumstances, was to treat the conveyance as to the particular land as void, and appeal to equity to prevent the happening of irreparable injury to respondents. The only adequate way of preventing such injury was by an action to remove the cloud created by the mortgage on the land, obtained by good title, to cancel the mortgage in fact and of record and to effectually prevent transfer of the note to some innocent party by requiring delivery thereof into court for cancellation.
The foregoing covers all matters suggested by counsel for appellant which are deemed worthy of mention.
By, the Court. — The judgment is affirmed.-