O'Donnell v. Brand

85 Wis. 97 | Wis. | 1893

PiNNey, J.

The agreement for the sale and conveyance of the premises in question to the defendant vested in him an interest in land. The plaintiff thereby became a trustee of the legal title for the use of the defendant, and bound to convey it to him upon his paying or securing the payment of the unpaid purchase money as specified in the contract. The defendant thus acquired an equitable title or interest in the lot in question, and the defendant became the trustee of the plaintiff of the unpaid purchase money, and bound to pay it, with interest as stipulated in the agreement. The contract contains no provision whereby it might be rescinded and the interest of the defendant in the lot surrendered. Since the making of the contract the plaintiff has been at all times, and now is, in possession of it. It is contended that what took place between the parties when they met October 24, 1890, as above stated, amounted to a relinquishment of the lot and surrender of the agreement, and that the defendant is now estopped from disputing it. All that took place was that the defendant abruptly and peremptorily stated, as it is alleged in the complaint, and as if it was optional with him whether or not he should pay the balance of the purchase money, that he “did not want the lot, and that he had got to lose his hundred dollars which he had paid on it,” to which the plaintiff responded that he, the plaintiff, “must see about it,” and the parties then separated. The plaintiff afterwards concluded that he would not attempt to compel the defendant to perform the agreement on his part, but it is not claimed that he notified the defendant of his determination, and nothing took place between them thereafter in respect to the matter until July 16, 1892, when, the defendant having caused the contract to be recorded in the office of the register of deeds about three weeks previous, the plaintiff’s attorney tendered to the defendant a deed of quitclaim or release of the lot to the plaintiff, and demanded that he should execute and acknowledge it. The defendant refused to do this without compensation, and claimed that the contract was still in force, and that he would take the lot at the price named in the agreement, with interest, or would release the agreement for $100. The plaintiff soon after brought this action.

The defendant did not part with the agreement, nor did the plaintiff do any act or change his position in reliance upon the refusal of the defendant to take the lot. He did not even manifest a wish to rescind the contract upon being allowed to retain the $100. If the plaintiff was entitled to rescind the contract, he was bound, as a condition of doing so, to restore to the defendant the $100 he had received under it. After such a considerable lapse of time, his attempted acceptance in July, 1892, of the defendant’s offer of October 24,1890, came too late to bind the latter and enable the plaintiff to retain the $100, The plaintiff should have signified his acceptance of the offer within a reasonable time, and secured a proper relinquishment or surrender in writing. The case is utterly destitute of any element of estoppel against the defendant. All that took place between the parties in relation to the alleged relinquishment or surrender was by parol, and the minds of the parties do not appear-to have met upon any terms of rescission or surrender, even if a parol surrender would be valid. But by sec. 2302, R. S., “ no estate or interest in lands . . . shall be . . . surrendered, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party . . . surrendering . . . the same.” A surrender is “ the effectual yielding up of an estate or interest to one having the immediate reversion or remainder wherein such particular estate or interest may merge,” and may be “ by such act or acts as are inconsistent with the continuance of such former estate or interest, and must be accepted and acted upon by the other, or by both parties. When such acts and acceptance so concur under such circumstances, the party thus surrendering is estopped from subsequently disclaiming the effectiveness of such surrender.” It is essential to such estoppel that the party to whom such surrender by act in pais or operation of law is made shall have acted upon the faith of it in some material respect. Telford v. Frost, 16 Wis. 172, and cases cited; Dougherty v. Catlett, 129 Ill. 431; Kneeland v. Schmidt, 78 Wis. 348; Witman v. Watry, 31 Wis. 638. Here the defendant had no possession of the lot to surrender, and he did not deliver up his contract or make any written release or surrender by deed. There was at most a mere offer to relinquish the lot, which was not seasonably accepted.. When the defendant was asked to put the relinquishment or surrender in writing, he had a right to retract his offer, as he did. For these reasons the circuit court properly sustained the defendant’s demurrer.

By the Court.— The order of the circuit court is affirmed.