Cutler v. Babcock

• Decision Date: 02 February 1892
• Citation: Cutler v. Babcock, 81 Wis. 195, 51 N. W. 420 (Wis. 1892)
• Parties: CUTLER v. BABCOCK ET AL.
• Court: Wisconsin Supreme Court

81 Wis. 195

51 N.W. 420

CUTLER

v.BABCOCK ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1892.

Appeal from superior court, Milwaukee county; FRANKLIN L. GILSON, Judge.

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

This action was brought for the recovery of three lots in the village of Waukesha, and upon a trial by the courtthe plaintiff had judgment against the defendants for the recovery of two of them only, namely, lots 17 and 18, in block E, and the defendants had judgment for the other.The defendants appeal from that portion of the judgment relating to lots 17 and 18, and insist that upon the pleadings and facts found by the trial court that judgment ought to have been rendered in their favor as to these two lots, and not against them.There is no bill of exceptions.The question is, simply, what judgment should be given on the pleadings and findings?It is found by the trial court that on and prior to the 28th day of September, 1858, the defendant Babcock was the owner and possessor of the real estate described in the plaintiff's complaint, and also of the undivided one-half of lots 8, 9, 10, and 11, in block 8, in the village of Waukesha; that on that day he, with his wife, mortgaged to the plaintiff Cutler the two lots in question and the four others above described for the sum of $1,500, but he did not advance or pay to the defendant Babcock any part of that sum, agreeing to pay the same to him from time to time, as he might require or need it; that the plaintiff never did advance or pay any part of it; that, after the execution and delivery of the mortgage to the plaintiff, Babcock sold and conveyed the undivided one-half of lots 8, 9, 10, and 11 to one T. D. Cook, and the consideration therefor was paid to him with the knowledge and consent of the plaintiff; that the defendant after wards requested the plaintiff to foreclose this mortgage, and bid in the property therein described, for the purpose of clearing the title thereto, which the plaintiff agreed to do upon condition that Babcock should pay the costs and expenses of such proceedings; that, in pursuance of said agreement, the plaintiff did foreclose said mortgage, obtaining judgment of foreclosure on the 14th of September, 1860; that, after judgment of foreclosure was obtained, and in pursuance of said agreement, the plaintiff bid in all said property at the sale under the judgment, and, as a part of said contract to so foreclose said mortgage and bid in the property, he agreed that he would convey to said Cook lots 8, 9, 10, and 11, part of the property mentioned and described in the mortgage, at any time that it was desired, and that he would reconvey to the defendant Babcock lots 17 and 18 whenever requested so to do, and that, in reliance upon said promise, the defendant Babcock permitted the plaintiff to bid in said real estate on the foreclosure sale and take the title thereto in his own name, and the sheriff's deed on such sale was issued to the plaintiff; that thereafter the plaintiff did convey, as he had agreed, to said Cook, lots 8, 9, 10, and 11, but did not convey the other two lots, namely 17 and 18, either to the defendant Babcock, or to any other person for him; that the defendant Babcock has been in the continued and uninterrupted possession of said lots, under claim of title thereto, since the year 1860, and prior to the commencement of this action demanded of the plaintiff that he convey them to him according to the agreement, which he refused to do.It is further found that the mortgage so given by Babcock and wife to Cutler was without consideration; that it was foreclosed for the benefit of the defendant Babcock for the sole purpose of clearing the title to said real estate, and the title thereto was taken by him under a verbal agreement to reconvey it to the defendant Babcock, or such persons as he might designate, which agreement plaintiff afterwards refused to carry out so far as lots 17 and 18 are concerned.Ryan & Merton, for appellants.

J. V. V. Platto, for respondent.

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

The court below decided that the defendant Babcock, by consenting to the foreclosure of the mortgage, and to the plaintiff bidding in the premises on the sale under the foreclosure judgment, and the taking of the title to the lots in himself, as set forth in the findings of fact, attempted to create a trust in the two lots in question, resting in parol, which was void under the statute of frauds, and that the plaintiff's legal title thus acquired must prevail, and therefore allowed him to recover against the defendants the lots in question.Whether this is the correct legal conclusion from the facts found is the only question for decision.The finding, more briefly stated, is to the effect that, inasmuch as Babcock desired to clear up the title to the premises embraced in the mortgage to the plaintiff, it was agreed between them, at Babcock's request, that the plaintiff should foreclose the mortgage, bid in the property at the sale under the foreclosure judgment, and take a sheriff's deed thereof, and that he should convey the title to lots 8, 9, 10, and 11, described in the mortgage, upon request, to Cook, and upon like request he should convey to the defendant Babcock lots 17 and 18, upon condition Babcock would pay the costs and expenses of such proceedings; that the contemplated foreclosure and sale took place, and the premises affected thereby were conveyed to the plaintiff by the sheriff; that, in reliance upon plaintiff's promise to convey said premises as aforesaid, Babcock permitted the plaintiff to bid in said real estate at said sale and take the title thereto in his own name, that is to say, he was induced thereby not to take any other measures to secure the title to himself than those contemplated by the agreement.It is stated in the latter portion of the finding that the agreement to convey by plaintiff was “that he would convey said lots to the defendant, or such persons as he might designate.”The plaintiff has performed his part of the agreement so far as lots 8, 9, 10, and 11, which were to be conveyed to Cook, are concerned, the consideration for which lots Babcock received with plaintiff's consent, and, indeed, he fully complied with his part of the agreement in all respects except as to lots 17 and 18, which he refuses to convey to the plaintiff.It is a just inference that Babcock paid the costs and expenses of the proceedings from the fact that the plaintiff made the conveyance to Cook, which was to follow and not precede such payment; from the long period of time that has elapsed, and the fact that no claim appears to have been made by the plaintiff in the action that Babcock had been at any time in default in this or any other respect in performing the agreement on his part.The agreement, therefore, has been fully performed, except as to the conveyance by the plaintiff to the defendant Babcock of the lots in question.The plaintiff insists upon holding and enforcing the legal title so acquired by him, for the reason that, being by parol, it is within section 2302, Rev. St., which is that “no estate or interest in lands other than leases, for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned, surrendered, or declared unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized in writing;” and relies upon the case of Rasdall v. Rasdall, 9 Wis. 379, and other cases of the class to which it belongs.The provisions of this section, however, are subject to those of section 2305, Rev. St., that nothing therein contained “shall be construed to abridge the powers of courts to compel the specific performance of agreements in case of part performance of such agreements.”The object of the agreement under consideration, and the purchase which the defendant permitted the plaintiff to make, by foregoing, in pursuance thereof, his right to bid in the lots at the sheriff's sale, and by which alone the plaintiff was allowed and enabled to obtain the legal title, was not the creation of an express trust by parol in the lots in question in contravention of the statute, but, as found by the trial court, was for the sole purpose of clearing the title of said real...