21 Wis. 138 | Wis. | 1866
Lead Opinion
The appellant maintains that the circuit court erred in receiving the due bill in evidence, because the complaint alleged no promise on the part of the defendant. The due bill was set out verbatim, in the complaint, and that contains a promise either express or implied. We see no defect in the complaint.
2. The refusal of the court below to grant a nonsuit (for the reasons, first, that when the plaintiff rested it was admitted by the pleadings that the plaintiff was indebted to the defendant on the covenant of seizin more than the amount demanded by the complaint; and, second, that more than six years had elapsed since the cause of action accrued before the suit was commenced), is the second error assigned. It is obviously no ground of nonsuit, that the set off or counter-claim exceeded the demand of the plaintiff. The plaintiff may have brought bis action for the very purpose of compelling a settlement, or preventing the running of the statute of limitations. The other ground is also untenable. The weight of authority- is to the effect that the cause of action did not accrue until demand made by Noonan for the stock. But if we should follow the authorities most favorable to the appellant, which are to the effect that Ilsley, within a reasonable or convenient time, should have tendered Noonan the stock, we could not decide, as a matter of law, under the circumstances of this case, that a delay of thirty-eight days was unreasonable; and that was all the time that bad elapsed over six years after the due bill was made, when the suit was commenced.
He was entitled to a fair indemnity for all damages he had sustained. All the rules on the subject have been framed with a view to give him such damages as will indemnify him. These rules, so far as they have any bearing on the question
4. The appellant contends that thé title acquired by Noonan after the filing of the counter-claim setting* up a breach of the covenant of 'seizin, would not enure to his benefit, but that he had a right to recover for breach of the covenant the full consideration money and interest. Before what act a title thus acquired by a grantor will enure, and after which it will not enure, to the benefit of his grantee, it may be difficult to determine. We are inclined to the opinion that the rendition of judgment, in an action on the covenant of seizin, for the full consideration money and interest, is such an act. We have some doubts, however, whether judgment without satisfaction is sufficient. Eor if the judgment alone vests in the grantor the immediate right of possession of the premises which he delivered to his grantee, the latter might be deprived of the possession, and yet be unable to collect his judgment. On the other hand, if the grantor gives to his grantee neither possession nor title, should he be permitted after a delay of years to perfect the title, and, after suit brought on his covenant, then to purchase the land and compel his vendee to take it, when it may have/greatly depreciated in value? We leave this question undecided, as this case has previously been before us on a somewhat different state of facts,, and on another trial the evidence may be different *"
5. The appellant claims that he was .entitled to recover more than nominal damages on the covenant against incum-brances. The amount of the mortgage incumbrance exceeded
As the proofs show neither title nor right of possession in Ilsley or Silkman before November, 1862, I agree that we cannot presume that either of them was in actual possession of the lots prior to that time. On the contrary, I think the presumption, in the absence of any testimony upon the subject, is that the possession, either actual or constructive, was in Kasson, who was the real owner. Under these circumstances, I think the covenant of seizin was broken as soon as made, and that the right of action upon it did not pass to Silk-man by virtue of the conveyance to him, but that it remains in Ilsley to recover such damages as he has actually sustained. As stated in the opinion, I think the measure of damages in such a case is interest on the consideration money during the time the grantee was thus deprived of the possession, or for six years next before the commencement of the action. Eor this reason I think the instruction that the defendant was entitled only to nominal damages, was erroneous. As to the measure of damages in other cases of breach of the covenant of seizin, it being unnecessary to consider it here, I express no opinion.
Concurrence Opinion
I concur in the views of the chief justice, and do not wish to be understood as expressing any opinion upon the other questions so fully discussed by Mr. Justice Downer.
By the Court. — Judgment of the. circuit court reversed, and a venire de novo awarded.