Mohr v. Tulip

44 Wis. 274 | Wis. | 1878

Obtok, J.

The main questions and principles governing this case were fully considered by this court when the judgment upon the main issue was passed upon and reversed in Mohr v. Tulip, 40 Wis., 66; and the material facts and questions of the case must be held to be res adjudicates.

A repetition of a part of the opinion in that case will be sufficient for the disposition of this. The court in that case said: “But in view of another consideration, now to be noticed, we are unable to hold that the plaintiff is estopped from questioning the validity of this sale, which is this: The defendant set up in his answer, and gave his own testimony on the trial to support the averment, that he purchased the land at the guardian’s sale in good faith, for a valuable consideration, without notice of any irregularities or defects in the proceedings, supposing he was getting a perfect title to the premises. . . Under the doctrine laid down in Blodgett v. Hitt (29 Wis., 176), the plaintiff cannot recover the land without refunding the purchase money with interest, and all sums paid for taxes, and paying for all permanent improvements. Of course, the plaintiff is to be allowed for the use and occupation of the premises, excluding the value of the use of the improvements. The principles upon which the accounts between the parties should be stated are laid down in the Blodgett case, and require no further elaboration. But as the plaintiff is required to pay all moneys, with interest, which the defendant has expended for and upon the premises, there is no ground for the application of the doctrine of estoppel.”

This decision and these directions, which were to govern the future proceedings in the case, are clear, explicit and unmistakable; and the learned circuit court has been most careful and judicious, upon the trial of this case, in giving them full application and effect.

The questions relating to the good faith of the respondent in purchasing the jnemises at the guardian’s sale, and to the matter of the homestead, were fairly submitted to the jury, and found in favor of the respondent.

We are unable to find any error in the rulings of the circuit court upon questions of evidence, or in the instructions to the jury, or in the findings of the jury, or in the judgment. The case is remarkable for its able and careful trial.

By the Qowt. — -The judgment is affirmed, witli costs.

ByaN, C. JV, and. LyoN, JV, took no part.