Britt v. Bauman

• Decision Date: 08 October 1929
• Citation: 199 Wis. 514,226 N.W. 955
• Parties: BRITT ET AL. v. BAUMAN.
• Court: Wisconsin Supreme Court

199 Wis. 514

226 N.W. 955

BRITT ET AL.

v.BAUMAN.

Supreme Court of Wisconsin.

Oct. 8, 1929.

Appeal from an order of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge. Reversed.

This is an action of ejectment commenced by Henry Britt and Mary Britt against William Bauman on the 10th day of November, 1928. A demurrer to the answer of the defendant was overruled on the 24th day of January, 1929. From the order overruling such demurrer, the plaintiffs appeal.Schubring, Ryan, Clarke & Petersen, of Madison, for appellants.

Hill, Thomann & Beckwith, of Madison, for respondent.

OWEN, J.

The defendant failed to pay to the plaintiffs $175 interest due according to the terms of a land contract on the 15th day of September, 1928. The land contract provided that in case of the failure of the defendant to pay such interest the contract should at the option of the plaintiffs thenceforth be utterly void and all payments thereon forfeited.

On the 8th day of October, 1928, the plaintiffs caused to be served upon the defendant a notice of their election to declare such contract void by reason of the failure to pay such interest, and commenced this action of ejectment to recover possession of the premises. The answer alleged that the defendant was induced to enter into the contract by reason of certain misrepresentations made by the plaintiffs, that an action was pending in the circuit court for Dane county, brought by the defendant against the plaintiffs to recover damages by reason of such fraudulent representations, that the defendant had suffered damages in the sum of $3,000 by reason thereof, and that this was the reason why the interest had not been paid, that the defendant claimed the right to offset such damages against the interest; and further alleged that: “This defendant is ready, willing, and able to pay said interest if in law and in equity said interest is payable at this time from the defendant to the plaintiff, and if said interest money and the said damages claimed by this defendant for the fraud of the plaintiff in the purchase of said farm is not a proper offset to the amount due on said land contract set forth in plaintiff's complaint, and if the court should so decide, then this defendant is ready, willing and able to pay said interest and interest on said interest for delay in payment, and hereby pays and tenders into court the said amount of interest together with interest thereon up to the date of filing this answer.” The same facts with reference to fraud and misrepresentation were also set up in the answer as a counterclaim, a demurrer to which was sustained by the court.

[1][2][3][4][5] An action of ejectment on the part of the plaintiffs was proper to recover possession of the land upon the default of the defendant. Oconto Co. v. Bacon, 181 Wis. 538, 195 N. W. 412, 40 A. L. R. 175. That equitable defenses may be set up in actions of ejectment has long since been recognized. Prentiss v. Brewer, 17 Wis. 635, 86 Am. Dec. 730. That in an action such as this the defendant may set...