| Wis. | Oct 12, 1880
"Whatever might have been the effect of the parol transaction between Eichard Lewis and 'William Griffiths (Bowen v. Warner, 1 Pin., 600" court="Wis." date_filed="1845-07-15" href="https://app.midpage.ai/document/bowen-v-warner-6596402?utm_source=webapp" opinion_id="6596402">1 Pin., 600), it was plainly merged in the contract which the former accepted from the latter. Yenner v. Hammond, 36 Wis., 277" court="Wis." date_filed="1874-06-15" href="https://app.midpage.ai/document/yenner-v-hammond-6601611?utm_source=webapp" opinion_id="6601611">36 Wis., 277. The respondent claims as assignee of this contract; and, though the contract was not recorded, Lewis Williams, who purchased the premises from Griffiths, and the appellant, who purchased from Lewis Williams, both had notice of the contract. Lewis Williams, after he had acquired title, was in possession of the premises for some time before his death, receiving the rents. The complaint prays, among other things, an account of the rents received by Lewis Williams, and that the respondent be permitted to pay the balance due on the foot of the contract, and that thereupon the appellant be adjudged to perform the contract and convey the premises to the respondent.
This has been called a bill to redeem. In one sense it may partake of the nature of such a bill. Bills by the vendee for specific performance of contracts for the sale and purchase of land may often be regarded, in one aspect, as quasi bills to redeem. Such contract,s have always been regarded in equity as analogous to equitable mortgages; the vendor standing as mortgagee in fee, and the vendee as owner of the equity of redemption. Button v. Schroyer, 5 Wis., 598" court="Wis." date_filed="1856-07-01" href="https://app.midpage.ai/document/button-v-schroyer-6597522?utm_source=webapp" opinion_id="6597522">5 Wis., 598; Northrup v. Trask, 39 Wis., 515" court="Wis." date_filed="1876-01-15" href="https://app.midpage.ai/document/northrup-v-trask-6602015?utm_source=webapp" opinion_id="6602015">39 Wis., 515. And so a bill for specific performance of such a contract may partake of the nature of a bill to
Specific performance will not be decreed when, for any reason, it would be. inequitable. “ It is an application to sound discretion. This has been the uniform language of the com-ts of equity. It is not a case requiring the aid of the court ex debito jusiitim. It is a settled principle that a specific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the court, upon a view of all the circumstances. ‘ The jurisdiction,’ as Lord Eldoit observed (12 Vesey, 331), ‘is not compulsory upon the court, but the subject of discretion. The question is not what the court must do, but what it may do under the circumstances.’ A court of equity must be satisfied that the claim for a deed is fair and just and reasonable, and the contract equal in all its parts, and founded on an adequate consideration, before it will interpose with this extraordinary assistance. If there be any well-founded objection on any of these grounds, the practice of the court is to leave the party to his remedy at law for a
The contract for the sale and purchase of the premises in question was made in October, 1863, and three years were the limit of performance. This action was commenced in April, 1875. This mere lapse of time might, under many circumstances, be a formidable objection to specific performance. It is said in the first case in this court, Button v. Schroyer, that the court “ will enforce performance within a reasonable time.” And here the circumstances surrounding the contract give significance to the delay of the respondent, and tend to indicate his abandonment of it. It appears that, upon the assignment of the contract to the respondent in November, 1864, he went into possession of the premises under William Griffiths, and remained in possession until October, 1868; that then, upon the conveyance of the premises by Griffiths to Lewis Williams, he surrendered the premises to Lewis Williams, who remained in possession till his death, in August, 1873. The weight of • the evidence tends to show that, from the time Lewis Williams took possession until after his death, the respondent set up no claim to the premises under the contract from William Griffiths, and that Lewis Williams held them in his own right, free from any claim of the respondent. Certain it is that, in July, 1872, Lewis Williams executed his will, proved after his death, devising the premises to the appellant for life, with remainder to the respondent in fee; and afterwards, in March, 1873, conveyed the premises, in fee, through a third person to the appellant. Certain it is, also, that after the death of Lewis Williams, the respondent, claiming under the devise from him, commenced an action against the appellant and Edward Mitton, her immediate grantor, to set aside the conveyance to her on the ground of duress. In
Almost the only evidence tending to rebut the strong presumption of abandonment of the contract, arising from this consistent series of facts, ail tending one way, is that of the respondent himself. lie was the son of Lewis Williams, and he testifies to transactions between his father and himself quite inconsistent with his father’s conduct during his lifetime, and his own apparent acquiescence in it then and since, until the commencement of this suit. How far this evidence was competent (E. S., sec. 4069), need not be considered; It is enough to say that it cannot be received as a satisfactory statement of the equities between the respondent and his father to support a decree of specific performance. Courts of equity do not interpose this extraordinary power to enforce such suspicious and stale claims. They do not decree specific performance in cases of such doubt. Specific performance might well be a great wrong in such circumstances, and the plaintiff will be left to his remedy at law.
By the Court. — The judgment is reversed, and the causé remanded to the court below with directions to dismiss the complaint.