2 Chand. 133 | Wis. | 1850
The circuit court for Iowa county overruled a general demurrer, filed by the defendant, WaUcer, to the complainant’s bill. From this decision WalJcer appealed. The allegations in the bill are admitted. It sets forth that at, or soon before the land sale in Milwaukee, in 1838, Martin 0. WalJcer appeared in the town of Milwaukee, and gave out, and caused to be given out, among the settlers on the public lands, that he had large sums of money, belonging to himself and Ellis Balcer, which he, Walker, proposed to advance and lend, on behalf of himself and Balcer, to purchasers of said lands on the security of the lands, on the following terms and conditions : He, the said W, would purchase at the land sale, in his own name, at the minimum price of one dollar and a quarter per acre, the tract or tracts of land which the borrower of the money from him desired to purchase, and take as security for the loan, the bond of such borrower, to himself and Balcer, in a penalty, conditioned for the payment of double the said minimum price, payable at a future day to be agreed upon, with interest thereon at three and one-half per cent, per annum ; and would, thereupon, convey such tracts of land to the borrower, by warranty deed, with a condition or proviso annexed, and forming part of the deed, that if the grantee should fail to comply with the condition of such bond, then such conveyance and the estate thereby created should cease, determine, and be of no effect; and the said Walker, or his legal representatives, should have the right to enter and take possession of the premises and sell the same, and keep and
The hill further states, that in 1836-37, James Hogan went into possession of two parcels of land described as N. E. fractional quarter of section No. 5, in township No. 8, of range 15 east, in the county of Jeiferson, and the N. E. quarter of section No. 32, of township No. 9, in range No. 15, in the county of Dodge, in Wisconsin, being wild lands of the United States, and remained in peaceable possession thereof until the land sale ; that he went to the land sale to purchase said tracts, but finding himself short of the necessary funds, and hearing of the proposals of Walleer, he applied to Walleer for a loan of* money for that purpose, and Walleer agreed to make the loan om the terms before set forth; that, in piusuance of this agreement, Hogan did, on the 18th of February, 1839, execute and deliver to said Walleer his bond bearing date on that day, in the penalty of $1,659.14, to be paid to said Walleer and Mlis Baleer, their executors or assigns, and conditioned for the payment to them of the sum of $829.58 on the 18th of February, 1843, and annually the sum of $29.04 as interest, and for the payment of all taxes, etc.
The bill further states, that in pursuance of said agreement, Walleer, on the 23d of February, 1839, purchased of the United States the aforesaid tracts for the said Hogan, and that the payment of the purchase money to the United States was made by the said Walleer, on account of said Hogan, and was the true and only consideration for the bond of said Hogan to Walleer and Baleer, and that on the 27th of February, 1839, Walleer delivered to Bogan a deed of the said lands, of the tenor and purport aforesaid, and duly acknowledged.
And the bill charges that James Hogan thereby became seized in fee simple absolute of the said tracts, subject to the right of Walleer and Baleer, as incumbrancers thei’eon, to the payment of all sums due or to become due on said bond. It further states that James Bogan had paid a. part of the
In view of the facts set out in the bill, there can be no question as to the equitable relation between the parties. Wallcer, for himself and Baker, agreed to loan James Bogan a sum of money, and to enter the land for him, and took his bond for the sum loaned, and such interest or commission, as was agreed on between them, and then entered the land, on account of Bogan, hi pursuance of the agreement, taking the title in himself. The qualified deed afterwards given to Bogan must be regarded as a part of the same transaction, in fulfilment of the agreement, and the whole together constitutes Walker & Baker, at most, but incumbrancers upon the estate for the amount secured by the bond. They have an undoubted equitable interest or hen, either for the whole sum or for the amount actually advanced, with lawful interest. And James Bogan and his grantees have the whole estate and are the real owners subject to the extinguishment of this hen. It is immaterial whether the deed is forfeited or not, since its forfeiture would only throw back the title into the hands of Walker for the purposes originally intended. As the facts are now presented, it is impossible to separate the parts of the transaction. This is not the case of a naked conditional deed, and none of the authorities cited by the learned counsel for the respondents are at ah apphcable.
The circuit court was right in overruling the demurrer to
Order affirmed, with costs.
