Neff v. Rubin

161 Wis. 511 | Wis. | 1915

Siebecker, J.

The defendant contracted for the sale and conveyance of the above described lots to the plaintiff, and upon payment of the consideration to give plaintiff “a warranty deed” thereof subject to the mortgages specified in the contract. The question presented is, Did the court err in refusing to receive parol 'evidence to show that defendant’s tender to plaintiff of a warranty deed containing the restrictions above specified was a compliance with the terms of the land contract ? The term “a warranty deed” in a contract for the sale and conveyance of land bas in the law the clear and definite meaning that the vendor will convey the title to the premises by deed containing the usual covenants generally inserted in a warranty deed, which includes the covenant that the land is free and clear from incumbrances. 1 Warvelle, Vendors (2d ed.) §§ 418, 419. This court at an early day held that a contract to convey by “a good and sufficient warranty deed” entitled the vendee to a warranty' deed of the land “free from all incumbrances.” Davidson v. Van Pelt, 15 Wis. 341. Other cases to the same effect dealing with such contracts and the effects of covenants to convey by deed are: Falkner v. Guild, 10 Wis. 563; Bateman v. Johnson, 10 Wis. 1; Davis v. Henderson, 17 Wis. 105; Ourtis L. & L. Co. v. Interior L. Co. 137 Wis. 341, 347 (118 N. W. 853) and cases cited on p. 348; Kramer v. Carter, 136 Mass. 504. The term “a warranty deed,” in the contract for the sale and conveyance of the lots, being in its legal meaning free from ambiguity, calls upon defendant to convey the title to the lots by deed containing the usual covenants of warranty. It follows that defendant cannot complain of the court’s ruling excluding parol evidence to show that the contract called for a conveyance of the lots by a deed with restrictive covenants and reversionary provisions.

It is also well established that the restrictions on the title to the lots in question constituted such an incumbrance as to prevent defendant from giving such a warranty deed as contemplated by the contract. Batley v. Foerderer, 162 Pa. St. 460, 29 Atl. 868; 3 Washb. Real Prop. (6th ed.) § 2385; Doctor v. Darling, 68 Hun, 70, 22 N. Y. Supp. 594; Gibert v. Peteler, 38 N. Y. 165; Goodrich v. Pratt, 114 App. Div. 771, 100 N. Y. Supp. 187.

Where the vendor cannot convey title as agreed by the contract of sale the vendee may refuse further payments of the purchase price and recover the amounts paid thereon. Falkner v. Guild, 10 Wis. 563; Davis v. Henderson, 17 Wis. 105; Harrass v. Edwards, 94 Wis. 459, 69 N. W. 69; Breen v. Arnold, 157 Wis. 528, 147 N. W. 997. It is plain that tbe deed tendered by tbe defendant under tbe contract of sale is not a warranty deed of tbe premises conveying them free from incumbrances as called for by the contract of sale.

It is argued that tbe plaintiff through bis attorney waived tbe conditions of tbe contract of sale calling for “a warranty deed” by tbe attorney’s letter of October 28, 1914, stating in effect that plaintiff would carry out tbe agreement of sale, though advised to tbe contrary by bis attorney, on receipt from tbe defendant of “tbe warranty deed” called for by tbe contract of sale and conveyance. We cannot find anything in this letter, taken in connection with all of tbe negotiations preceding it, that can be held to be a waiver or any modification of the terms of tbe contract. Its contents clearly indicate that plaintiff insisted on full performance of the terms of tbe contract. Tbe letter in terms clearly shows that tbe plaintiff stands on tbe contract and demands of defendant that be carry but its obligations. Tbe deed tendered by tbe defendant after this correspondence does not comply with tbe terms of the contract and plaintiff was not required to accept it. It is manifest from tbe record that both parties to tbe contract finally treated tbe contract as ended and stood on their legal rights consequent to the alleged breaches. Under these facts and circumstances no further steps were required of plaintiff to tender return of tbe writing embodying tbe contract to entitle him to recover tbe purchase money be bad paid on tbe contract. Woodman v. Blue Grass L. Co. 125 Wis. 489, 103 N. W. 236, 104 N. W. 920. Tbe trial court properly awarded judgment for recovery of the purchase money plaintiff bad paid on tbe contract of sale of tbe lots.

By the Court. — Tbe judgment appealed from is affirmed.