Smith v. Hughes

50 Wis. 620 | Wis. | 1880

Obtokt, J.

The counterclaims of the defendant, for a rescission of the bargain and for damages, are predicated upon the breach of the covenant of seizin in the deed of the respondents, executed and delivered in July, 1872. It is too well settled that only executory contracts can be rescinded, to require discussion. This method of relief is the converse of specific performance, and in its very nature can have application only to executory contracts; and this court has settled the question beyond controversy, by repeated decisions. In direct application to this case, it is held in Booth v. Ryan, 31 Wis., 45, that especially a rescission cannot be made after a deed with full covenants, together with possession, have been delivered in full execution of the contract of sale. It is not pretended in this case that the vendors were guilty of any fraud or concealment, or that the warrantors were insolvent, or that the appellant did not have full knowledge of the condition of the property and title. Willard’s Eq. Jur., 303; Taft v. Kessel, 16 Wis., 273; Horton v. Arnold, 18 Wis., 212; Brunette v. Schettler, 21 Wis., 188; Rawle on Covenants, 565, 591. The remark in the opinion of Chief Justice Dixon in Mecklem v. Blake, 22 Wis., 495, intimating that a rescission might be made in such a case, was clearly obiter, and without due consideration.

As to the counterclaim for damages for the breach of the covenant of seizin, the law is equally well settled that an action to recover anything more than nominal damages for the breach of this covenant will not lie until after eviction by paramount title, or other actual injury. Mecklem v. Blake, 22 Wis., 495; Noonan v. Ilsley, 22 Wis., 27; Eaton v. Lyman, 30 Wis., 41. From tbe evidence in tbe ease, there can be no question but that'the adverse possession of the appellant^ and those holding under him, ripened into title before the answer setting up the counterclaim in this action was made. This affirmative relief asked by way of answer must be treated as a cause of action, and before this cause of action accrued the title of the appellant became perfect, and his previous cause of complaint had been removed. The lots had been used together in the business of the respondents before the deed was made, and they had full and notorious possession of both lots, and delivered the same to. the appellant at the time of the execution of the deed. Since that time, the evidence is very clear and satisfactory that the appellant, and those claiming under him, have continued in nearly the same use and possession of, and exercise nearly the same acts of ownership over, both of the lots. They have paid the taxes thereon, and derived rents and profits therefi’om, and to the extent necessary for their business they have been in the visible, open and notorious possession of both lots to the extent of their relative facilities of use and enjoyment, and to the exclusion of all other persons. The appellant has offered to rescind the bargain, and although, as we have seen, this offer is fruitless in such a case, yet it is sufficient that he has made this offer to rescind in good faith, and tendered or pretended to tender back to the respondents all of the title and possession he received from them in 1872. By this answer the appellant should be estopped from claiming, in this case, that he had lost or abandoned such possession, and rendered himself unable to deliver back the same to the respondents on such rescission. In this view of the case, it is not necessary to scan very closely the evidence as to such continued possession of both lots for the full time of ten years after the execution of the deed of James Sanders, trustee, to the respondent Rufus R. Smith, in July, 1868, in the respondents and the appellant, and in those who claim under him. But, without such admission in the offer to rescind and deliver back the full possession by the appellant, the evidence is clearly satisfactory that such possession has been sufficient to answer the demands of the statute of adverse possession. R. S., secs. 4210, 4211, 4212; Wilson v. Henry, 40 Wis., 594.

In respect to railways and other highways over these lots, or over any portion of them, it is sufficient to say that if they were used as such when the deed of July, 1872, was executed, the appellant must be presumed to have purchased with full notice of them, and they constitute no breach of the covenants of the deed. This would be so if the ways were, in law, easements (Kutz v. McCune, 22 Wis., 628); and much more if they were less than easements, or unlawful. But in respect to railways, where the right of eminent domain of the government is exercised in conferring a right of way, they cannot constitute breaches of covenants of title in any case. Rawle on Cov., 140; Frost v. Earnest, 4 Whart. (Pa.), 86; Ellis v. Welch, 6 Mass., 246. Such acts of sovereignty are not presumed to he in the minds of the parties, or embraced within the purview of the warranty. EFo injury can be presumed to any one from such acts, as full indemnity and compensation are required to be made. It is needless to say that the covenants of a deed do not embrace trespasses or unlawful intrusions. In respect to the damages in abeyance .for rights of way over the property, the appellant, and those who claim under him, now having full title, can make them available to - themselves whenever they choose to do so.

The application of the insurance moneys in part payment of the mortgage assumed by the appellant as part of the consideration of the deed, was the application of the moneys of the respondents, and in principle is the same as if the respondents had paid directly so much of said mortgage for the appellant. That mortgage having drawn nine per cent, interest, it is no hardship for the appellant to now pay seven per cent, on such amount from December 1, 1870, the date when said moneys were so applied upon the mortgage. It was clearly liquidated at that time, and such adjustment of the interest appears to bo equitable and just, within the rule in Diedrich v. Railway Co., 47 Wis., 662, and other cases in this court. This opinion as to interest is subject, of course, to any stipulation of the parties; and the matter is not deemed important, as there is no discussion of the question in the brief of the learned counsel of the appellant.

We can find no error in the judgment of the circuit court.

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