4 Wis. 79 | Wis. | 1856
By the Court,
This is a bill for a specific performance of a contract, filed by school districts Nos. 3, 9, 10 and 11 of the city of Janesville, against A. Hyatt Smith, William H. H. Bailey, Lewis E. Stone and William Macloon. The bill is taken -as confessed by all the defendants except Macloon.
. The first question to be considered is the right of these complainants to maintain this action. It is insisted, by the appellant, that the complainants have not shown, by their bill, that- they
Stone testifies that Bailey came to him and said that he had sold the school district on the west side of the river, a lot for a school-house site, and that the lot selected in their division belonged to witness, and asked witness if he would stand by the sale; to which he replied, he would. Soon after this he secured from the district, as part payment for the lot, between $17 and $18, afterwards ascertaining when the district began to build the school-house that the lot was Smith and Bailee’s, and not his. In his next settlement with them he accounted for the money secured from the district, informing them of it, and that the lot was theirs. He further testifies that he ratified the sale made by Bailey while under the impression the lot was his, but that be never made any contract with the officers of the district about it.
Bailey is not so clear in his recollection of events. He testi
Smith testifies in substance to the same contract, and states most distinctly that the officers of the district agreed to it.
These different statements of the witnesses in regard to the contract, are widely variant and inconsistent upon the supposition that but one contract was made about the purchase of the lot, and can only be reconciled upon the idea that there were two ; the one testified to by Taylor and Stone, and a subsequent one testified to by Smith and Bailey ; and the latter view of the case is the ground upon which it was considered by the court below. That certainly was the most favorable view that could be taken for the appellant, and since the appellees do not complain of the decree rendered, we will adopt the same conclusion, although, were the examination imposed upon us, our appreciation of the proofs by which this conclusion is sustained, might differ from that of the Circuit Court. Conceding, then, that there were two contracts about the purchase of the lot, and that the one testified to by Taylor and Stone was abrogated or abandoned by the one subsequently made; is the latter of such a character that a specific performance of it should be enforced against the appellant Maeloon ?
And in the first place it is to be observed that Maeloon is not entitled to protection as an innocent bona fide purchaser without notice. No one, we think, would seriously contend for that. For it is in evidence that he was accustomed to attend the school meetings in that house; that he participated in the proceedings of those meetings — knew the district had been in possession of the lot for years before he received the deed — and was fully apprized of all that had taken place in reference to it. His conveyance was taken, then, subject to all the equities existing be
In the spring of 1845 Smith and Bailey owned a large number of lots on the west side of tbe river in Janesville, among which was. the one in controversy. They were accustomed, to make sales as opportunity offered, each one invariably ratifying the sales made by tbe other. Bailey made most of the sales. He was applied to by tbe trustees of school district No. 7 for a lot for a school-house. He went with two of them and selected it; agreeing upon $30 as the amount to be paid for it, and to wait for his pay until the district could raise the money. Although Smith and Bailey then really owned the lot, yet the officers of the district were given to understand by some one during the negotiations, that the lot was Stone’s. Who was responsible for this mistake does not satisfactorily appear, and it is not material to inquire. We presume it was Bailey ; indeed, have but little doubt about it. However that may be, the officers of the district, supposing tbe sale was all right, entered into possession of tbe lot. They built a valuable brick school-house upon it. They paid Stone $17.46, part of the consideration money, supposing he was the owner. This money was paid over by Stone to Smith and Bailey, or accounted for in his settlement with them. While the house was being built or after it was built, it was discovered that it was upon a lot belonging to Smith and Bailey instead of Stone. Another contract was made by which tbe district was to have tbe lot upon condition of exonerating Smith and Bailey from all taxes they might become liable to pay towards building tbe bouse. Subsequently these taxes were collected, amounting to forty or fifty dollars. The district continued in possession of the lot from the spring of 1845 until 1851. In the meantime the value of the lot is greatly increased. Less than $30 and interest remained due and unpaid, but no claim was ever made by any one against the district for it. Bailey, when he sold the lot, owned one-half and had authority to sell the other half. They were both citizens of Janesville, living in the vicinity of the house, knew when it was being
Under these circumstances there can be no doubt but the principles of fair dealing and the rules of law require that the contract should be enforced against Smith. It would be grossly inequitable to suffer the district to be turned out of the possession of the lot, lose the benefit of the improvements, the rise in the value of the property, because it had neglected to pay the small sum above stated. In reply to this it is said, that the district has been guilty of gross laches in not paying the money before and applying for the deed. Undoubtedly the district has been in default about paying the money. But we all know how loosely the affairs of school districts are managed. The officers generally change every year, the records are imperfectly kept, and it is often difficult, after a little lapse of time, to ascertain the’ real liabilities of districts. In this case there might be some excuse for the non-payment of the balance due on account of the change of the title, and the uncertainty as to who owned the lot. Moreover, -Smith and Bailey were dealing .with a school district, and should have brought their claim to the attention of the citizens of the district by presenting it at some school meeting. Had the district refused to pay, the money could have been collected by law1. The district had acted upon the good faith and binding effect of the contract, and could not abandon it.
It is objected that the contract is too vague and uncertain to be enforced; but this objection is not well taken. The contract set forth and proven is most clear and explicit in its terms. The district was to have the lot upon condition of releasing the owners from all tax for building the school-ho.use, and that tax, ^afterward collected, amounted to forty or fifty dollars.
Upon the hearing, the contract proven by the defendants
The decree of the Circuit Court is therefore affirmed.