Zunker v. Kuehn

113 Wis. 421 | Wis. | 1902

The following opinion was filed January J, 1902:

BarbeeN, J.

The court found the parties agreed to an exchange of lands, and that each was to give the other a good record title to the tract be was to convey. Tbe defendants claimed to own a tract witb a street frontage of 110 feet. Tbe deed given plaintiff only covered a strip ninety-nine feet wide. Tbe défendants bad no record title to any more land than they conveyed, and were therefore unable to comply witb their agreement. This fact operated as a legal fraud upon plaintiff, and was held sufficient to entitle him to a rescission of tbe transaction. No serious controversy arises over tbe facts. It is not claimed that defendants bad any record title to tbe strip eleven feet in width which was not included in their deed. They insist, however, that they bad title by adverse possession, and, having offered to convey, no rescission should be decreed. While tbe evidence is not perfectly clear and satisfactory, it may be admitted that defendants showed adverse • possession of over twenty years. This was not a title of record. It depended upon questions of fact, and could only be established by a resort to parol evidence. Nothing that could be adjudicated in this action would be binding upon tbe bolder of tbe record title. If plaintiff was to accept a deed from defendants, be might still be obliged to litigate witb tbe holders of tbe record title tbe question of title as against them. This court cannot anticipate what tbe defendants or tbe owners of tbe record title may be able to prove in such a contest. Tbe latter may be able to prove facts tending to show that what appeared to be adverse possession in a litigation in which be was not beard is quite otherwise. Such possession may be shown to have been permissive, or not continuous, or tbe attaching party may be one against whom tbe statute has not run. Tbe situation in such cases is so uncertain, and tbe inability to make a binding adjudication so apparent, that courts uniformly refuse to compel grantees to accept title where resort to parol evidence is necessary to establish it, or where there is a reasonable doubt concerning its validity. Tbe following are eases where this question has been involved and discussed: Binds v. McElroy, 160 N. Y. 156; Brokaw v. Duffy, 165 N. Y. 391-399; Heller v. Cohen, 154 N. Y. 299; Swayne v. Lyon, 67 Pa. St. 436; Holmes v. Woods, 168 Pa. St. 530; In re Reighard’s Estate, 192 Pa. St. 108; Moore v. Williams, 115 N. Y. 586; Allen v. Atkinson, 21 Mich. 351; Jeffries v. Jeffries, 117 Mass. 184. In Noyes v. Johnson, 139 Mass. 436, it was held that a purchaser was entitled to- a good record title, and was not obliged to accept a title by adverse possession. In Dobbs v. Norcross, 24 N. J. Eq. 327, it is said:

“The court will never compel a purchaser to take a title where the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceeding.”

Many other cases might be cited, but those mentioned cover the precise ground stated, and there are none to the contrary.

Another proposition submitted by the defendants is that there is no proof showing misrepresentation or fraud. It is undisputed that defendants pointed out the entire tract of 110 feet as the property owned by them, and which they were to convey. They supposed they had a record title to the same, and intended to convey it. When plaintiff accepted the deed and took possession he supposed he had received record title to the entire tract. The representations of defendants, although innocently made, were just as harmful to plaintiff as though they had known them to be false. The evidence casts no imputation of actual fraud upon the defendants, yet they cannot escape the consequences of their representations because of that fact. It is beyond question that plaintiff was induced to enter into the agreement by the acts and representations so made. Ealse representations of facts or conditions which have induced the making of a contract may be actionable although not shown to have been made willfully, or with fraudulent intent. Montreal River L. Co. v. Mihills, 80 Wis. 540; Gunther v. Ullrich, 82 Wis. 222; Porter v. Beattie, 88 Wis. 22.

“The seller is bound to know that the representations which he mates to induce tbe sale of his property are true.” Beetle v. Anderson, 98 Wis. 5.

See Krause v. Busacker, 105 Wis. 350; McKinnon v. Volmar, 15 Wis. 82. The defendants were hound to know whether they had record title to the land they pointed out or not. Even if the parties'were mutually mistaken, and the mistake was. material, this will be the ground for relief by rescission, as béing equivalent to fraud in law. Bigham v. Madison, 41 L. R. A. 267. There is no way of getting away from the fact that the plaintiff did not secure that for which he contracted, and that defendants are not in a position to give him that which they agreed to give. Under these circumstances a rescission of the entire deal was within the province of a court of equity to declare, and we see no ground for disturbing that determination. None of the other questions raised are deemed to be of sufficient importance to require discussion.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied March 11, 1902.