Seatoff v. Anderson

28 Wis. 212 | Wis. | 1871

Cole, J.

We do not very well see upon what ground the defendant can bave tbe benefit of equities between the plaintiff and Andreas Sorrenson, if any exist. He is a stranger, having no interest in the land or building, and in no way connected with the title. On the other hand, the plaintiff has unquestionably acquired the legal title by purchase from Sherry. Suppose the plaintiff purchased the property subject to the contract between Sherry and Sorrenson, and that the latter still had the right to pay the amount due on the contract and demand a deed. Upon this assumption, Sorrenson himself would only have the right to discharge the contract on his part and insist upon the plaintiff giving a conveyance. But we take it that he would have no right to remove the house from the premises without paying the money due on the contract. Again, suppose the plaintiff and Sorrenson entered into the agreement foreshadowed in one of the offers of testimony made on the part of the defendant, in and by which the plaintiff undertook and agreed to pay Sherry the amount due from Sor-renson, and take the deed, and hold the premises, and .sell them for the benefit of Sorrenson? In this aspect of the case, in the least favorable view for the plaintiff, he would have the interest of a mortgagee in the property, and Sorrenson would have no right to remove the building and diminish the value of the security. But what may be the real equities between the plaintiff and Sorrenson is a question which does not arise in this case.' It is sufficient to say that even if Sorrenson was in possession of the premises, upon the facts disclosed, he would have no right to remove the building. The plaintiff either owned it absolutely, or had the interest of a mortgagee in the property; and in either view he was entitled to recover the value of the house. The defendant admitted in his answer, that at the request of the wife of Sorrenson, who was then in the possession of the premises and occupying the building as a homestead, he, with others, removed the building. This answer, even if sustained by the most conclusive testimony, sets up no defense to the action. For, as already observed, the plaintiff Rad at least the interest of a mortgagee, and neither Sorrenson nor his wife had the right to do any act which would diminish the permanent value of -the mortgaged property. In no 'possible view of the case does the defendant show any legal excuse or justification for the removal of the building.

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