Wilcox v. Scallon, 144 Wis. 74

Wilcox v. Scallon

144 Wis. 74 | Wis. | 1910

Tbe following opinion was filed October 4,1910:

BjeewiN, J.

Tbe findings of tbe court below are attacked by tbe appellants, and they say in tbeir brief that tbe only question in tbe case is, Did Tbomas J. Wilcox, in failing to. pay tbe balance on the land, give up bis right to tbe deed, and was a new arrangement made ? Tbe findings are set out in tbe statement of facts and there is ample evidence to support them. Tbe material question for consideration, therefore, is whether upon tbe findings thus made tbe appellants were entitled to judgment. It is argued by appellants that tbe respondent, Scallon, could not have reclaimed tbe land in any event without tendering back tbe property received, because tbe relation of vendor and vendee existed under the contract, and tbe appellants, having gone into possession under tbe agreement, acquired an interest in tbe land. But tbe deed was deposited in escrow, and no title passed or was h> pass until payment of tbe balance due within tbe period prescribed by tbe agreement. This payment was not made, and upon default it was competent for tbe parties to make the-agreement which they did, by tbe terms of which tbe deal was declared off and Wilcox was to remain in possession as tenant of respondent.

It is doubtless true that, bad no new agreement been made between the parties after default, Wilcox would have bad such an interest as would have entitled him to redeem on tender of tbe balance of tbe purchase money. But tbe new agreement deprived him of that right if such agreement was valid. But it is insisted by appellants that tbe interest of Wilcox was such as could only be surrendered by an instrument in writing, or by act or operation of law under see. 2302, Stats. (1898), which provides that “No estate or interest in *78lands . . . shall be . . . surrendered . . . unless by act or •operation of law or by deed or conveyance in writing, subscribed by the party . . , surrendering . . . the same.” But the interest which the appellants acquired by virtue of part payment and getting into possession was at best only the right to a conveyance on payment of balance of the agreed purchase price. No title passed to them, therefore such interest could be surrendered by oral agreement of the parties, ■and especially when the agreement was executed. Telford v. Frost, 76 Wis. 172, 44 N. W. 835; Maxon v. Gates, 112 Wis. 196, 201, 88 N. W. 54; Hutchins v. Da Costa, 88 Wis. 371, 60 N. W. 427; Goldsmith v. Darling, 92 Wis. 363, 66 N. W. 397; Lovejoy v. McCarty, 94 Wis. 341, 68 N. W. 1003; Strain v. Gardner, 61 Wis. 174, 21 N. W. 35. In Telford v. Frost and Maxon v. Gates, supra, it was held that the relation of vendor and vendee under a land contract can be ■changed without an instrument in writing. The case at bar is a stronger case in favor of the respondent, because the •deed had no validity until delivered.

But it is insisted that the findings are not supported by the •evidence. It is true that because of the death of Wilcox much evidence respecting the transaction between the parties which would have been admissible had he lived was rendered inadmissible. However, there is sufficient evidence in the record by way of admission of the deceased to several parties, as well as other facts and circumstances proved, which amply support the findings of the court below. We think the findings are well supported by the evidence and support the judgment.

By the Court. — The judgment of - the court below is affirmed.

'A motion for a rehearing was denied December 6, 1910.