Ellis v. Sw. Land Co.

• Decision Date: 14 March 1899
• Citation: 78 N.W. 583,102 Wis. 409
• Parties: ELLIS v. SOUTHWESTERN LAND CO.
• Court: Wisconsin Supreme Court

102 Wis. 409

78 N.W. 583

ELLIS

v.SOUTHWESTERN LAND CO.

Supreme Court of Wisconsin.

March 14, 1899.

Appeal from circuit court, Eau Claire county; James O'Neill, Judge.

Suit by J. F. Ellis against the Southwestern Land Company. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.Frederick A. Teall, for appellant.

Wickham & Farr, for respondent.

BARDEEN, J.

The demurrer to the plaintiff's complaint was sustained in the court below on the ground that it appears therefrom that he had an adequate remedy at law. This ruling must be sustained unless we can say that sufficient facts had been stated to warrant us in concluding that the action can be maintained in equity. The grounds urged for our consideration to support the complaint are: (1) That this action may prevent a multiplicity of suits: (2) that an accounting is demanded; (3) that the contract in question creates an equitable lien upon the defendant's property, which only a court of equity can determine and foreclose.

There can be no doubt but that the pleader has attempted to state a cause of action in equity. With some considerable particularity of detail it is alleged, in substance, that the plaintiff was at one time the owner of a large amount of real and personal property; that in the year 1887 plaintiff caused the defendant company to be organized, and conveyed to it all his real estate, and was to receive 366 shares of the capital stock in payment therefor; that he remained the owner of said stock until September, 1893, when, owing to some disagreement with the other members of the company, he made a proposition to sell out his interest in the company, and convey to it all his real estate and personal property, except certain reservations mentioned, in consideration that the defendant would pay and save him harmless from certain debts and obligations, some 48 in number, a list of which was attached to his said proposition; that the defendant accepted said proposition, and plaintiff accordingly sold his personal property to defendant, and relinquished to it all his interest as a stockholder; that the defendant has failed to comply with its agreement to pay the debts mentioned in certain particulars mentioned, and that by reason thereof plaintiff has been compelled to pay thereon the sum of $4,885.74; that defendant has neglected and refused to pay “certain other items of indebtedness which it assumed and agreed to pay as aforesaid,--the particular items, or the amounts due thereupon, or to whom the same are due and payable, the plaintiff is unable to state”; that defendant paid no consideration for the stock and property transferred to it except the sums it has paid in discharge of certain of the obligations it assumed, the amounts of which plaintiff is unable to state. The demand for relief is for an accounting, and that defendant be required to reconvey to plaintiff the property received from him, with his...