Becker v. Knudson

• Decision Date: 26 September 1893
• Citation: 56 N.W. 192,86 Wis. 14
• Parties: BECKER v. KNUDSON.
• Court: Wisconsin Supreme Court

86 Wis. 14

56 N.W. 192

BECKER

v.KNUDSON.

Supreme Court of Wisconsin.

Sept. 26, 1893.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Henry Becker against Tideman Knudson for breach of covenant. From a judgment for defendant, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This is an action on the covenant against incumbrances in a deed of conveyance from the defendant to the plaintiff of a certain farm, dated June 1, 1871, except as to two certain mortgages thereon, and the entire consideration for the conveyance was $2,600. There were quite a number of other incumbrances by judgments for small amounts, and among them one against the defendant in favor of S. L. Sheldon, docketed July 30, 1867, upon which execution had issued, and the farm had been sold June 28, 1870, to said Sheldon, for $83.75, and the certificate of sale had been assigned to W. A. P. Morris. Subsequently, April 12, 1878, the farm remaining unredeemed, it was conveyed by sheriff's deed to Morris, and on the 17th of June, 1878, the plaintiff was compelled to pay him $500 to regain the title, which sum, with interest, he sought to recover in this action. It was contended and proved on behalf of the defendant, and found by the court, (under objections on the part of the plaintiff that parol evidence was not admissible to contradict, vary, or explain the deed or covenant in question,) in substance, that at the time of the execution and delivery of the deed, as the defendant was then unable to pay off the incumbrances on the farm, the plaintiff was to retain the entire purchase money,--$2,600,--and with and out of it pay off all existing incumbrances against the land, and account for and pay over the balance to the defendant; that the plaintiff failed to redeem said sheriff's certificate of sale on the judgment in favor of Sheldon, although he had timely notice of its existence; that the parties had a settlement in relation to the moneys he had paid out for incumbrances and to the plaintiff about two years after the date of the deed, when they had and used an abstract of title procured at the joint expense of the parties, which showed all incumbrances against the land, including the Sheldon judgment and certificate of sale thereon; that the plaintiff represented to the defendant and claimed that he had paid all incumbrances so shown, and the parties settled on that basis, the defendant believing such claim to be true, and the plaintiff then paid over to him the balance found due to the defendant,--$68.15; that the defendant thereafter gave the matter of said incumbrances no further attention. This was about six years before the sheriff's deed was executed to Morris. The failure of title complained of was caused by the neglect of the plaintiff to apply in payment and redemption of the sheriff's sale the moneys retained by him for that purpose, as he had agreed to do. There was considerable conflict in the evidence, but it sustains the finding of the court. Judgment was given for the defendant, and the plaintiff appealed.John M. Becker and B. W. Jones, for appellant.

J. W. Leary and Richmond & Smith, for respondent.

PINNEY, J., (after stating the facts).

The contention of the plaintiff that the evidence to sustain the defense was not admissible is, we think, founded upon a misapprehension of the nature of the transaction and the purpose for which the evidence was introduced. After the execution and delivery of the deed the plaintiff retained the entire consideration, and held it upon the trust and agreement that he would apply it to the payment of existing incumbrances on the land, which the defendant was...