Diggle v. Baulden
| Decision Date | 24 February 1880 |
| Citation | 4 N.W. 678,48 Wis. 477 |
| Parties | DIGGLE v. BAULDEN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Grant county.
Barber & Clementson, for respondent.
Bushnell & Clark, for appellant.
This is a suit in equity for the strict foreclosure of a land contract. The complaint sets out substantially that the 80 acres of land in question was a part of a tract of land purchased and held by the plaintiff, by land contract, from one Putnam David, for the sum of $4,587.20; $2,000 of which sum was paid down, and the balance of which was to be paid thereafter in instalments, with interest, and that such instalments and interest had been partly paid, leaving only the sum of $1,500 of principal and $100 of interest unpaid, and that upon the payment of the same, which the plaintiff is able to make at any time, he can obtain a deed of the whole tract from the said David. The complaint then sets out a land contract between the parties to this action, providing in substance for the purchase of 80 acres of said tract, by the defendant from the plaintiff, for the sum of $1,000, to be paid in yearly instalments of $100 each, with 10 per cent. interest on the whole, payable annually, and that the first instalment of principal and the first year's interest were to be paid on or before the first day of January, 1878, and that the defendant should go into possession of the premises, make certain improvements and pay certain taxes thereon, and hold as a tenant at sufferance, and liable to be expelled as a tenant holding over, on failure to make any of the payments at the time specified, and that in case of his failure to make any of such payments the agreement was to be void.
The complaint further shows that the defendant went into possession of the premises, and has failed to pay such first instalment of principal, and such interest and taxes, and prays that he be adjudged to pay the same in a certain time, to be fixed by the court, and in default thereof be forever barred and foreclosed of his right, title and interest in the premises. To this complaint the defendant interposed what may be called a general demurrer, which was stricken out on motion of the plaintiff, on the ground of frivolousness, and leave given to the defendant to answer in twenty days. No answer having been made, judgment was rendered for the plaintiff that the defendant pay within one year the sum so found due, together with interest and costs, and in default of such payment he be foreclosed and dispossessed, and that a writ of assistance issue if he refuses to surrender such possession. The defendant appeals from this final judgment. The learned counsel of the appellant insists that the question on this appeal is the frivolousness of the demurrer, the order striking out the same on that ground being an interlocutory one, which may be reviewed upon appeal from the final judgment.
The practice of this court may be considered established, that in such a case the question is whether the demurrer was well taken, or whether the complaint stated a good cause of action. Cobb v. Harrison, 20 Wis. 626;The Sentinel Company v. Thompson, 38 Wis. 489. Since by the present statute (section 2681, Rev. St.) in case of striking out a demurrer as frivolous, the court may allow the defendant to plead over within a limited time, on terms, when such an order is made, there can be no substantial distinction between striking out a demurrer as frivolous, and overruling it on argument, for the legal consequences are the same. The objections to the complaint urged here on the argument are--
First, that it shows on its face that the respondent, by his written contract of sale, falsely represented or warranted that he held a valid title to the land he so contracted to sell. This principle may be correct so far as it affects the payment of any part of the purchase money, when the time fixed for such payment is contemporaneous with the time fixed for the execution of the deed, so that the covenants to make payment and to execute the deed are mutual and dependent, as in the leading case cited, of Burwell v. Jackson, 9 N. Y. 535. But even in such case the principle is to be applied only as defence to the payment, founded on such inability to convey a valid title and other equitable grounds of relief, such as the insolvency of the party contracting and unable to convey, and the impossibility of obtaining...
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Oconto Co. v. Bacon
...a contract of that character an action of unlawful detainer would lie, citing chapter 33 of 2 Hilliard on Vendors. In Diggle v. Boulden, 48 Wis. 477, 4 N. W. 678, an action was brought by the vendor for strict foreclosure of the land contract. The purchaser set up that the vendor had an ade......
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Semmler v. Beulah Coal Mining Company, a Corp.
... ... placed in a position to demand performance by the vendor ... Loveridge v. Coles, 72 Minn. 57, [48 N.D. 1017] 64, ... 74, N.W. 1109; Diggle v. Boulden, 48 Wis. 477, 482, ... 4 N.W. 678. Accordingly, the independent covenants of the ... vendee, broken at the time of the cancellation ... ...
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...of strict foreclosure. (Harding v. Harker, 17 Idaho 341, 134 Am. St. 259, 105 P. 788; Griswold v. Simmons, 50 Miss. 123; Diggle v. Boulden, 48 Wis. 477, 4 N.W. 678; Baldwin v. MacDonald, 24 Wyo. 108, 156 P. Johnston v. Smith's Admr., 70 Ala. 108.) "No stay of execution is effected by an app......
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Krakow v. Wille
...the relationship of landlord and tenant, and declares its adherence to and approval of the holding to the contrary in Diggle v. Boulden, 48 Wis. 477, 4 N. W. 678. In Martin v. Scofield et al., 41 Wis. 167, it was determined that, though a contract like the one in question did not in terms d......