125 Wis. 198 | Wis. | 1905
The following opinion was filed April 5, 1905:
We need not resolve the somewhat vexed question whether the covenants of seisin and of freedom from in-cumbrance, under the law of Wisconsin, run with the land in the strict sense of that phrase, or being, as they necessarily are, breached by the existence of any incumbrance at the time •of the conveyance, whether merely the chose in action thus arising in favor of the original grantee is, by his deed, assigned to his successors in title, so that, instead of suing in their own right for the technical breach of those covenants, they sue merely in the right of the original covenantee as their assignor, and therefore subject to any defenses which would be effective as against him. This action is predicated not upon any technical breach arising from the mere existence of incumbrance at the time of the conveyance, whence nominal •damages only could arise, but upon an alleged substantial and injurious breach, consisting in the eviction of this plaintiff after the property came to him, and whereby he himself suffered, the damage. Mecklem v. Blake, 22 Wis. 495; Johnson v. Brice, 102 Wis. 575, 78 N. W. 1086; Rice v. Ashland Co. 114 Wis. 130, 89 N. W. 908. Whether the above-mentioned covenants run with the land or not, strictly speaking, there is no doubt that the warranty to the original grantee, his heirs and assigns, of peaceable and undisturbed possession, does so. Schwallback v. C., M. & St. P. R. Co. 69 Wis. 292, 298, 34 N. W. 128; Tiedeman, Real Prop. (2d ed.) § 862; 3 Washb. Real Prop. (6th ed.') § 2386. This warranty, according to the allegations of the complaint, is, of course, breached by an evic
To this cause of action the answer, to give it the most favorable construction, and that which plaintiff has given it in his demurrer, states at least two defenses. The first, which plaintiff has been willing to treat as sufficiently pleaded as a separate defense, is to the effect that Debus, the first grantee, agreed to pay this tax. Jn order that this should be any defense against the plaintiff’s cause of action as above described, it must be construed as impliedly asserting that by extrinsic agreement between the defendant and Debus it was stipulated that the former should not covenant or warrant against this incumbrance. Obviously, however, if that fact were established, it could constitute no defense against the plaintiff’s action. It would constitute a direct contradiction of the express covenant of the deed, and this cannot be permitted. Defendant refers us to a familiar line of authorities holding that the consideration of a deed is open to examination and proof by parol evidence; also that proof of other elements of the contract involved in the sale and purchase of real estate is not excluded by the deed, for the reason that that instrument is, in its very nature, but an expression or execution of
Turning now to the general demurrer to the whole answer, we find, first, a denial of any disturbance of plaintiff’s possession. True, that denial is made only because of lack of knowledge or information sufficient to constitute a belief, but it raises that issue, and would render admissible evidence in contradiction of plaintiff’s allegation of eviction, which, if preponderant, would defeat the cause of action set. forth in the complaint. Smith v. Hughes, 50 Wis. 620, 7 N. W. 653. True, it is admitted that a judgment quieting title in Smith has been entered, which would of itself constitute eviction in connection with the fact alleged by the complaint that the premises have at all times been vacant and unoccupied, so-that all possession thereof is and has been constructive; but. that allegation is nowhere admitted, and is met by the general denial. Besides this, it is asserted by the answer that .plaintiff has in fact acquired the tax title of Heller which arose under this incumbrance by purchase at a cost not exceeding $150. This also would constitute a good defense pro tanto, for plaintiff can recover only the damages which he-has in fact suffered, and, if he has chosen to save himself from complete eviction by buying in the outstanding claim, he cannot recover as for a total eviction. Johnson v. Brice, 102 Wis. 575, 78 N. W. 1086. It is suggested that this, being: only a partial defense, cannot sustain the answer. But it certainly constitutes a new issue, which, being resolved in ,de
By ihe Court. — Order appealed from reversed so far as it •sustains the general demurrer to the answer as a whole; so far as it sustains the demurrer to the so-called further or separate defense, such order is affirmed; appellant to recover ■costs.
A motion for a rehearing was denied June 23, 1905.
