Fontaine v. Riley

• Decision Date: 09 February 1926
• Citation: 189 Wis. 226,207 N.W. 256
• Parties: FONTAINE v. RILEY ET AL.
• Court: Wisconsin Supreme Court

189 Wis. 226

207 N.W. 256

FONTAINE

v.RILEY ET AL.

Supreme Court of Wisconsin.

Feb. 9, 1926.

Appeal from Circuit Court, Door County; W. B. Quinlan, Judge.

Bill for specific performance by A. B. Fontaine against James Riley and another wherein George C. Knudsen and wife were impleaded as defendants. Decree for plaintiff, and defendants appeal. Reversed and remanded, with instructions to dismiss plaintiff's complaint.

Appeal by the defendants from a judgment decreeing specific performance of an oral contract for the sale of land.

In 1920 the plaintiff purchased 40 acres of land on Mission Bay, in Door county, Wis., for the sum of $40 per acre, and during the following year constructed a summer home thereon. To the west of plaintiff's land, the defendants James Riley and his sister Mary owned a large tract of land, which also had a water frontage on the bay. The 20 acres of the Riley land located immediately west of plaintiff's land consisted principally of a swamp, and in its condition in 1920 was unsuitable for residence purposes. On the 20 acres alluded to there still remained a small number of virgin pine trees, and the balance of such acreage was covered with a variety of growing trees and brush of comparatively little or no value.

In September, 1920, the plaintiff and one Van Dyke, a real estate dealer, were present upon plaintiff's land while the same was being surveyed by a surveyor, and the defendant James Riley, who, with his sister, owned the land west of plaintiff's tract, being interested in the survey, was present while the lines were fixed by the surveyor. It was suggested by the plaintiff at that time that his son, who had just grown to manhood, was very much interested in duck hunting and that a certain point on the bay a short distance from plaintiff's land would make a desirable place for the erection of a hunting lodge to facilitate the pursuit of the sport of duck hunting. Plaintiff was not a hunter, but both Van Dyke and Riley were experienced sportsmen in that line, and in order to secure the advice of an expert as to the amount of land which plaintiff would need for the purpose indicated, in order to properly protect the point, he requested the advice of Van Dyke, and the latter then proceeded along the shore a distance west, covering a space of about 500 feet, according to his estimate, from the point, and the land thus traversed, up to the south line of the Riley holding, was indicated by Van Dyke as of sufficient area to serve the desired purpose. Both the plaintiff and Riley followed Van Dyke to the end of his route, which the plaintiff claimed was at the location of several logs near the shore, and here the three parties, according to the testimony of the plaintiff and Van Dyke, further discussed the proposed purchase. Plaintiff and Van Dyke testified that Riley suggested the purchase of a strip extending back from the shore a distance of about 200 feet, in order that Riley might reserve to himself the benefit of the timber standing upon the balance. No conclusion, however, was reached upon that day, and the parties dispersed, with the understanding that they would meet again, and in the meantime Riley would discuss the matter with his sister. Riley denied that the westerly point of the land included in the proposed purchase was where Van Dyke claimed he had fixed it, but took the position that the point was fixed at a certain birch tree standing near the shore, and that this point was indicated by a blaze which he cut on the tree, and that the proposed area included not 20 acres, but about 7 acres.

A few days thereafter, the plaintiff and Van Dyke went to the Riley home, and there met both James Riley and his sister. Plaintiff and his expert, Van Dyke, both testified that the Rileys expressed an unwillingness to sell a tract extending back from the shore a distance of 200 feet, but that they were willing to sell the entire tract up to the lot line; that Riley had paced off the proposed purchase, and that it included about 20 acres, and that he would be willing to make it 20 acres; that the Rileys would sell such tract at the same price per acre as the plaintiff paid for his summer home tract, and that they would accept $800 for the land. This testimony was contradicted by both the Rileys, they claiming that nothing was said about a 20-acre tract, or that they would be willing to sell the land at a price of $40 per acre. They admitted, however, that the price fixed was $800, but contended that the land proposed to be included in the sale extended to the blaze upon the birch tree, and that the proposed sale was not based upon any particular acreage, but was limited to an indefinite strip included within the territory up to the blaze.

On a subsequent trip to the Rileys' home, the plaintiff paid Riley $500 in cash, and the plaintiff testified that Riley assumed to secure a surveyor, so that the land purchased might be described, and that upon the completion of such survey and the execution and delivery of the deed, plaintiff would pay the Rileys the balance of the purchase price. Plaintiff also testified that Riley inquired from him whether the services of plaintiff's surveyor might be procured, and that he (the plaintiff) attempted to procure such services, but failed in his effort. He also testified that Riley agreed to procure the services of a surveyor by the name of Schauer. It appears that Riley actually did confer with Schauer, but that he was unable to procure him. On the other hand, Riley testified that the plaintiff agreed to procure the services of a surveyor, and that he waited patiently until the summer of 1922 for the plaintiff to fulfill his agreement, but that no surveyor was actually secured until a part of this 20-acre strip was sold to the defendants Knudsen and wife.

Plaintiff testified that immediately after he paid the $500 down, he took possession of the 20 acres, such possession being evidenced by plaintiff's son using the tract in question for hunting purposes. He also claims that on the advice of Riley, he constructed a drain on the line dividing his residence property and the 20 acres. The defendants' witnesses testified that the drain was constructed a little to the east of the division line. Plaintiff also testified that before he had any dispute with Riley, in the summer of 1922, he started cutting poles and collecting stone for the building of his hunting cabin, and that the work was done by an employee with the aid of a team of horses, and that the performance thereof occupied a period of about two days. All of this evidence is contradicted by both Riley and his sister. To further show that the plaintiff had actually taken possession of the 20 acres, he testified that a certain way or path through this tract was cleared by him, and that the work in connection therewith consisted principally in removing brush and other obstructions along this path. Both Riley and his sister denied that any work had been done, or that the path showed any evidences of an attempt to clear it.

Knudsen and wife were not made parties defendant originally, and the case proceeded to the close of the evidence, when the trial judge announced that specific performance could not be decreed against the Rileys, for the reason that the Rileys had prior to the time of the commencement of the action herein, and the filing of the lis pendens, conveyed about 13 acres of this 20-acre tract to the defendants Knudsen, and that the deed conveying such tract was recorded prior to the filing of the lis pendens. Knudsen and wife were thereupon impleaded, and upon the taking of Knudsen's deposition, the court filed its findings of fact and conclusions of law, in which it ordered specific performance.

Knudsen testified that on or about the 9th day of August, 1922, after having heard that Riley was anxious to sell a part of his land, he approached him upon the subject, whereupon the matter was discussed, and on the 16th day of August, an option for the purchase of 20 acres was executed and delivered to him. The proposed tract was situated directly to the west of the 7 acres which Riley claims were included in plaintiff's purchase. It was then agreed between Knudsen and Riley that the latter would have the land surveyed, and that he would thereupon execute a proper deed in the premises.

The 20 acres purchased by Knudsen was viewed by him and a man by the name of Nelson, and the surveyor who surveyed the tract, and they testified that at that time they did not observe that any work had been done on the land; that there was no evidence of any poles having been cut or stones collected for the building of the hunting lodge; that the pathway had not been cleared; and that it did not show any evidence of work having been performed thereon. They also testified that Riley showed them the blaze upon the birch tree, which he claimed was the westerly line of the plaintiff's purchase; that neither Knudsen nor his nephew, Nelson, nor the surveyor, had any knowledge whatsoever imparted to them that the plaintiff claimed to have purchased the east 20 acres of the Rileys' land, and that they were not aware of any facts whatsoever which would have a tendency to place them upon inquiry. The consummation of the deal between the Knudsens and the Rileys was left with Attorney Wagener, of Sturgeon Bay, and the purchase price was paid and the deed delivered. In other words, the Knudsens claim that they are innocent purchasers, for value, of the tract conveyed to them.

The court found that an oral agreement was entered into between the plaintiff and the Rileys for the purchase of the east 20 acres of the Riley tract; that possession of this tract was delivered to the plaintiff, and that it was used for hunting purposes from that time on; that it was agreed that Riley was to have the land...