Smith v. Armstrong

24 Wis. 446 | Wis. | 1869

Dixox, C. J.

It appears to a majority of this court that this cause was correctly decided by the court below, and that the judgment should be affirmed. The questions involved in the case are chiefly of fact, and concern the defense set up by the defendant Armstrong, and his right, as prayed for in Ms answer, to have a specific performance of the contract entered into between Mmself and Elbridge Smith. The facts were, that the property in controversy, a mill site and the saw-mill thereon, situated in the village of Menasha, where all the parties in interest resided, except the plaintiff, Frederick II. Smith, had, for several years prior to October, 1860, been owned and occupied by the defendant Armstrong and Elbridge Smith, as tenants in common. On the 20th of October, 1860, Elbridge Smith’s undivided half of the property was sold at sheriffs’ sale, to satisfy a mortgage given thereon by Mm and Ms wife, Caroline J. Smith, in the month of January, 1855. The property was bid in at the sheriff’s sale, and the title taken, by one Cronk-hite. On the 20th of November following, Cronkhite conveyed it to the wife, Caroline J. Smith; but that deed was not recorded until the 13th day of February, 1862. On the 27th of November, 1860, seven days after the execution of the deed to his wife, Elbridge Smith entered into the contract in question, to convey the undivided half to the defendant Armstrong. 'That contract appears on its face to be his own, and not executed in behalf of Ms wife, or as her agent. It was duly acknowledged, and was recorded in the office of the register of deeds on the 3d of October, 1861. Immediately after its execution, Armstrong took possession of the whole premises, and has continued in the open and notorious control and occupation of them ever since. At that time, too, Elbridge Smith was considerably involved in debt. He testifies Mmself that several unsatisfied judgments were standing against Mm. He also testifies that he procured CronkMte to bid off the property at the sheriff’s sale; that there was some arrangement between them, though no particular one at the time of the sale; that he procured the deed from Cronkhite to Ms wife; and that she never directed him to do so. He testifies, generally, that he was acting for hjs wife, though • without any specific directions from her. It does not appear that the deed from Cronkhite was ever in fact delivered by Mm to his wife, or that she, at the time of the transactions in question, had any knowledge whatever of its existence. Neither does it appear that Mrs. Smith at that time possessed, or ever possessed, any separate estate or property, or that she advanced any thing toward paying Cronkhite for the land, or toward paying the mortgage debt for which he bid it off. But, on the other hand, it is made to appear that she knew at the time that her husband had sold the property, and that she made no objection. Her husband so testifies, and Armstrong swears that he had a conversation with her upon the subject, and told her he had bought the mill, and that she said she “was glad -her husband had sold the old mill, for he would attend to his business now.” Under these circumstances, our conclusion is, that the specific performance of the contract cannot be defeated on the ground that Mrs. Smith was the owner of the land, and that her husband was not authorized to sell it. And for this purpose we care very little which of three views' is taken of the question: whether Mrs. Smith is to be regarded as having ratified the contract made by her husband; whether she is to be estopped from denying its validity; or whether. she is to be considered as having had no interest in the property. Our own inclination is to the latter view; but the others we think equally correct. It seems very clear to us, upon the facts disclosed, that Elbridge Smith was, as he represented himself, the real owner of the property, and that Armstrong, having bargained for it with no knowledge or information, constructive or otherwise, that the legal title was in Mrs. Smith, is entitled to be protected on this ground. And to the point that a married woman may be estopped under circumstances like these, we call attention to the cases of Gatling v. Rodman, 6 Porter (Ind.) 289, and Hartman v. Kendall, 4 id. 403, cited in the brief of counsel for the defendants.

Some other minor points are presented in the case, not requiring especial notice. They were all correctly decided by the court below. Authority in writing from Mrs. Smith to her husband, assuming her to have been the real owner, was not necessary in order to authorize him to enter into the contract for the sale of the land (Dodge v. Hopkins, 14 Wis. 630); and hence a ratification in writing by her of the contract was not required. But if the contract is to be regarded as resting in parol, enough was done to take it out of the statute. The defendant Armstrong had taken possession under it, made some improvements, and paid part of the price; and he shows that he was always ready and willing, and had offered, to pay the residue. We think it would be inequitable, under the circumstances, to deny a specific performance; and the plaintiff having, in November, 1866, with constructive, if not actual, knowledge of the defendant’s rights, taken title by conveyance from Mrs. Smith and her husband, was properly decreed to convey to the defendant on payment by the latter to him of the balance of the purchase-money due upon the contract, as offered by the answer.

By the Court. —Judgment affirmed.

Paiste, J., dissents.