Conrad v. Tr. of the Grove, U. A. O. D.

• Decision Date: 13 October 1885
• Citation: 25 N.W. 24,64 Wis. 258
• Parties: CONRAD v. TRUSTEES OF THE GRAND GROVE, U. A. O. D.
• Court: Wisconsin Supreme Court

64 Wis. 258

25 N.W. 24

CONRAD

v.TRUSTEES OF THE GRAND GROVE, U. A. O. D.

Supreme Court of Wisconsin.

Filed October 13, 1885.

Appeal from circuit court, Milwaukee county.

The defendants are trustees and the governing body of a corporation known as the Grand Grove of the United Ancient Order of Druids. On May 20, 1881, as such trustees, and for and in behalf of such corporation, they conveyed two certain lots in the city of Milwaukee to one Heinrich Conrad, the husband of the plaintiff, with covenants of seizin, against incumbrances, and for quiet enjoyment. Conrad, the grantee, went into possession of the lots under his conveyance. The title of the corporation depended upon a conveyance of the lots to it by one Carl Witt, by a deed absolute on its face. A few months later Witt commenced an action in the county court against the defendants, representing the corporation, and Conrad and his wife, to have his conveyance to the corporation declared a mortgage, and to redeem therefrom. He alleged that Conrad had notice of his equities when he took a conveyance of the lots. Such proceedings were had in the action that on November 29, 1881, the county court rendered judgment for Witt, adjudging his said deed to the corporation a mortgage, and his right to redeem the same by paying the amount of the mortgage debt, which was stated in the judgment. Witt having paid that amount into court for the use of the corporation, the defendants were decreed to reconvey the lots to him. The court also held that Conrad was not a bona fide purchaser, but that he purchased the lots with notice of Witt's equities, and decreed that the conveyance to him was null and void as against Witt, and vacated and set the same aside as to him, and ordered possession of the lots to be delivered to Witt. March 6, 1882, two appeals were taken to this court from such judgment: one by the defendants, the other by Heinrich Conrad. The latter entered into an undertaking, with two of the principal officers of the order as sureties, conditioned to pay Witt the value of the use and occupation of the lots, pending his appeal, should the judgment be affirmed. The judgment of the county court was afterwards affirmed, (55 Wis. 376, and 13 N. W. Rep. 261,) and the corporation paid Witt for such use and occupation $125. March 30, 1882, Heinrich Conrad conveyed the lots to one Kloepfel, who immediately conveyed the same to the wife of Heinrich, the plaintiff. These conveyances were in the form of warranty deeds, but were merely voluntary conveyances, without any valuable consideration therefor. They were, respectively, recorded in July and August of the same year. October 6, 1882, Heinrich Conrad and his wife were forcibly evicted from the lots by virtue of the legal process issued in Witt's action. While they occupied the same they made permanent improvements thereon of the value of from $250 to $300, the most of which were made after Witt commenced his action.

The consideration which Heinrich agreed to pay for the lots was $1,000. He paid $400 at the time of purchase, and gave six notes of $100 each, secured by mortgage on the lots, for the balance. In May, 1882, he paid one of these notes, and the accrued interest on the others, amounting in all to $142. November 22, 1882, the defendant's trustees, as aforesaid, tendered to Heinrich $464.17; that being the $542 he had paid on the purchase price of the lots, and the interest thereon to the date of the tender, less $125 paid Witt for use and occupation of the premises by Heinrich and wife pending the appeals to this court, as before mentioned. At the same time they tendered to him his unpaid notes and the mortgage given to secure them. Heinrich refused to accept the tender, and it seems to have been kept good, and the amount tendered, with the securities, were deposited in court.

The plaintiff, Mrs. Conrad, brought this action to recover damages for the breach of the covenants of seizin, and for quiet enjoyment, contained in the conveyance of the lots executed by the defendants to Heinrich, her husband and grantor. The cause was tried without the intervention of a jury, and the court found substantially the facts above stated; also that the tender was made to the plaintiff as well as to her husband.

The conclusions of law which the court deduced from the above facts are as follows: “(1) That the plaintiff is entitled to no greater an amount of damages than the amount tendered prior to suit, and now on deposit with the clerk of court;” and “(2) that the defendants are entitled to judgment dismissing the complaint of plaintiff on its merits, with costs of suit, which judgment shall be entered as of the term the cause was tried.”

Judgment for the defendants was entered accordingly, dismissing the complaint, with costs. The plaintiff appeals from the judgment.Johnson, Riebrock & Halsey, for appellant, Johanna W. Conrad.

Cotzhausen, Sylvester, Scheiber & Jones, for respondents, Trustees of the Grand Grove, U. A. O. D.

LYON, J.

The errors assigned relate only to the sufficiency of the tender. It is alleged that the same was not made to the plaintiff, but only to her husband; and, further, that the sum tendered was too little, in that money should have been tendered instead of the notes and mortgage executed by the plaintiff's husband to the defendants for part of the price of the lots in question; that the $125 paid by the defendants to Witt for use and occupation of the lots, pending the appeal in his case to this court, should not have been deducted from the sum paid them by the plaintiff's husband on account of the lots; and that the tender should have included the value of permanent improvements made upon the lots by the plaintiff and her husband. These propositions will be considered and briefly discussed in their order.

1. The trial court found...