Williamson v. Neeves, 94 Wis. 656

Williamson v. Neeves

94 Wis. 656 | Wis. | 1897

Piunbv, J.

1. The bill of exceptions does not state or show that it contains all the evidence given at the trial. The findings of fact by the trial court, therefore, cannot be reviewed, but must be accepted as verities. The presumption is that the findings are correct. Error must be made to appear affirmatively, and the burden of showing it from the record is on the appellant. In re Meseberg’s Estate, 91 Wis. 399; McDermott v. C., M. & St. P. R. Co. 91 Wis. 39, 44.

*6622. The complaint is quite general in its allegations, but it appears to contain all the averments essential to a complaint for specific performance. Several objections were made to the contract of July 22, 1891, as that it was so uncertain that the court could not decree specific performance of it, for no time was fixed when the plaintiff was to convey, or when the platting, grading, laying of sidewalks, setting curb, etc., were to be done, or by whom, and that it was not specified when the mortgage should be executed. The modification of the contract by the agreement of May 21, 1892, expressly made a part of the original contract, obviated these objections, except as to the time when the plaintiff was to convey, in respect to which the legal implication is that the conveyance was to be made and delivered within a reasonable time for that purpose after the defendant had performed on his part so as to be entitled thereto. It was agreed that the conveyance of the lots described in the contract, by the defendant to the plaintiff, and the execution of the mortgages to him for the unpaid purchase money, were to take place simultaneously with the execution and delivery of the conveyance of the tract of nine acres to the defendant. The general provisions of the contract show, we think, that the defendant was to plat the land and make the specified improvements. The parties have so construed it, and acted accordingly, and both assume that position in their pleadings. As to the work specified, the defendant was bound to perform it within a reasonable time for that purpose. The defendant took possession of the land, and platted the ground, and to a considerable extent proceeded with the work of making the contemplated improvements so as to fit the lots for sale, and he sold sand from the premises to a very considerable amount. When the contract was made, it appears that it was explained to the defendant that the deed of the land to the plaintiff had been deposited in escrow with a third party, awaiting performance of some *663condition of the plaintiff’s purchase before it could be delivered, but which he might at any time perform, and that the defendant expressed himself satisfied with the situation. The plaintiff obtained the legal title, it would seem, in December, 1892,— at all events, several months before this action was commenced. This was in time to enable him to perform on his part, and entitle him to specific performance. Gates v. Parmly, 93 Wis. 294.

3. Almost if not the entire controversy between the parties seems to have been in relation to the accrued interest upon the unpaid purchase money, as stipulated in the contract as modified, from June 1, 1892. The contract that the defendant should pay interest from that date is clear and explicit. He was willing, it seems, to pay it, if the plaintiff would take lots in Milwaukee or elsewhere, but attempts to settle it in that manner failed, the defendant declaring that he would not pay it in money. It was suggested, also, that some mistake had intervened in the agreement modifying the original contract, by which the balance of the purchase money due to the plaintiff was stated at $16,000, instead of $15,000, which latter sum is the amount that would remain, after deducting the price of the buildings and of the lots which the plaintiff was to have, amounting to $12,000, from the purchase price of the land, of $27,000. As a matter of computation this would seem to be true, but it appears that about $1,000 had then accrued for interest, on unpaid purchase money, from the date of the original contract, according to its terms, and the agreement of May 24, 1892, was made to settle and adjust existing differences between the parties. Besides, there is no claim in the answer that any such mistake occurred, and there is nothing in the evidence tending to show that the defendant either supposed or claimed that any such mistake had been made. We must hold that the unpaid balance of purchase money was correctly stated in the agreement of May 24, 1892, at $16,000.

*6644; The point that evidence objected to by the defendant was improperly admitted cannot be sustained. There was. sufficient competent evidence- appearing in' the record to-justify the findings, if the evidence objected to had been excluded. This is an equity case, and the admission of improper evidence will not constitute error, if there is other evidence sufficient to sustain either the findings or the judgment.

5. Objection is made to the judgment that it requires the defendant to execute fifty-six notes of $285.71 each, to be secured by separate mortgages on each of the fifty-six lots to-be retained by the defendant, while the contract did not require such notes to be given. This error, if any, is a harmless one, for, if the defendant neglects or refuses to give the notes and the mortgages,by the terms of the judgment the plaintiff is only to have and retain a lien on the said fifty-six lots for the unpaid purchase money, — that is to say,. $285.71 on each of said lots, with “the right to collect the balance of said purchase money, and interest thereon, so secured, as by law provided.” It lies wholly with the defendant to give, or refuse to give, the notes. If he refuses to give them, the debt and accruing interest remains a charge-on the lots. Of this he cannot be heard to complain.

6. A finding, made at the defendant’s request, is to the effect that “ at all times since the making of the contract of May 24, 1892, there had been, and are now, existing-against said premises, outstanding liens for unpaid taxes for the years 1891, 1892, 1893, and 1894, which amount to-about $1,000.” All these taxes appear to have been levied and charged against the tract of land sold by the plaintiff to-the defendant, and became incumbrances thereon after such sale, and after the defendant had been let into possession. The contract made no provision as to whether the vendor- or the vendee should pay the taxes accruing prior to the execution of the conveyance, nor are we aware of any statutory provision applicable to such a case.

*665After the execution of the contract, the vendee must be regarded as the real owner of the property, though not the holder of the legal title, — the vendor holding the legal title in trust for the vendee, subject to the payment of the purchase money; and, as between the parties, the latter is regarded as a mortgagor, and the vendor as the mortgagee,, of the premises for the amount due for the purchase money. The .contract of May 24, 1892, must be regarded as a modification of, and relates back to, and by its terms forms a part of, the contract of July 22, 1891, under which the defendant obtained possession, before the agreement of May 24, 1892, was executed. The law appears to be well settled that, where a vendor surrenders possession of the premises sold, and the vendee obtains possession and the use, and the vendor covenants to execute a conveyance or warranty deed, free and clear of all incumbrances, when the purchase money is paid or secured, the vendee is liable for the taxes assessed upon such premises after his taking possession under the contract, and he cannot require a covenant in the deed to him against a lien for such taxes. Miller v. Corey, 15 Iowa, 166; Light v. West, 42 Iowa, 138; Meyer v. Dubuque Co. 49 Iowa, 195; Spangler v. York Co. 13 Pa. St. 32; Farber v. Purdy, 69 Mo. 601; Cole Mfg. Co. v. Jenkins, 47 Mo. App. 664; Brown v. Brown, 124 Mo. 85; Willard v. Blount, 11 Ired. Law, 624. It is found that the defendant, after the making of the agreement of July 22, 1891, took possession of the premises, except the buildings, which had not been removed at the time of the trial; the defendant having acquiesced in the buildings thus remaining. The purchase price of the buildings was $3,000; the lots, part of the tract, which were to be conveyed to the plaintiff, were valued at $9,000; and'the plaintiff continued to' lease the buildings and receive rents therefor, as he testifies, to quite an amount. The purchase price of the entire premises and accrued interest, as adjusted by the contract. *666of May 24, 1892, was $28,000, showing that it would, be equitable, under the oircumstanees, as a condition of specific performance, that the parties should pay and discharge the tax liens mentioned in the finding, — the plaintiff three sevenths thereof, and the defendant four sevenths,— and that the judgment of the circuit court should so require, and secure payment thereof by its judgment accordingly.

7. With the exception above stated, the findings support the judgment, and, if they failed to do so, this would not constitute reversible error, if it appeared, as in this case we think it does, from the evidence in the record, that the judgment in its material parts, except as above qualified, is supported and warranted by the evidence. Wilkinson v. Wilkinson, 59 Wis. 557; Jones v. Jones, 71 Wis. 520; Sanford v. McCreedy, 28 Wis. 103.

For these reasons, the judgment of the circuit court must be reversed, and the cause remanded to the circuit court, to ascertain the amount of the said tax liens, and to render judgment as before, but requiring the payment of the amount due on said tax liens, and securing the payment thereof, in accordance with the opinion of this court. No costs will be allowed on this appeal,, but the respondent is to pay the fees of the clerk of this court.

By the Court.— Judgment is ordered accordingly.