Forcy v. Leonard

• Decision Date: 01 June 1885
• Citation: 24 N.W. 78,63 Wis. 353
• Parties: FORCY AND ANOTHER, EX'RS, ETC., v. LEONARD.
• Court: Wisconsin Supreme Court

63 Wis. 353

24 N.W. 78

FORCY AND ANOTHER, EX'RS, ETC.,

v.LEONARD.

Supreme Court of Wisconsin.

Filed June 1, 1885.

Appeal from circuit court, La Fayette county.

Orton & Osborn, for respondents.

Moses M. Strong, for appellant.

TAYLOR, J.

This action was commenced by James T. Leonard in his lifetime against the appellant, James M. Leonard, for the strict foreclosure of a contract for the sale of certain real estate, the title to which was vested in James T. Leonard, and the possession of which was held by James M. Leonard, appellant. James T. Leonard died since the commencement of the action, and, the action surviving, his executors were substituted as plaintiffs.

There were two complaints--an original and an amended one. To the original complaint there were two answers,--an original and an amended answer. To the amended complaint the defendant answered, first, the amended answer to the original complaint, and a second answer stating matters not set out in such amended answer. It is stated that the action was tried upon the amended complaint, and the answers thereto. The original complaint alleges in substance that on and before November, 1868, one John Worick was the owner in fee of the land in controversy, and on that day made a contract in writing to sell and convey the same to the defendant, James M. Leonard, for the sum of $3,000,--$200 to be paid at the date of the contract, and the balance in installments as set out in the complaint, with interest at 10 per cent. from April 1, 1870; that the defendant paid the $200 down, and entered into the possession of the land under said contract for the purchase thereof. This contract was signed by both Worick and the defendant.

The complaint further alleges that afterwards, on the fifth day of July, 1869, Worick conveyed said lands to the plaintiff, by warranty deed, for the consideration of $2,000, paid by said plaintiff to Worick; that at the date of that conveyance by Worick to plaintiff, it was agreed between the plaintiff and the defendant that defendant would pay the plaintiff for said land the sum of $2,000, within not more than three years thereafter, with interest thereon at the rate of 10 per cent. per annum, and pay all taxes on said land; and that upon the payment of said sum of $2,000, and the interest thereon, the plaintiff would convey said land to the defendant; that under such agreement the defendant continued in possession of said lands, but has neglected and refused to pay said sum of $2,000, or any part thereof, and still refuses so to do; that the plaintiff is ready and willing to convey said lands upon the payment of said money, and always has been so ready and willing, and demands judgment barring and foreclosing the defendant of any right in or to said lands.

The defendant's amended answer to this complaint admits the seizin and possession by John Worick of the land in question; the making, execution, and delivery of the contract for the sale thereof by Worick to the defendant for the consideration and upon the terms stated in said contract; that the defendant entered into possession of the premises under said contract with Worick, and is still in the possession thereof, but claims that his possession under said contract was and is adverse to the said Worick and all persons claiming under him; and that he has so held possession adverse to Worick and his grantee for more than 10 years previous to the commencement of this action. The answer further denies that he made any contract with the plaintiff whereby he agreed to pay him the sum of $2,000, with interest at 10 per cent., within three years after the fifth day of July, or at any other time, for said land; denies all the allegations of the complaint as to any agreement for the purchase and sale of said land, made between the plaintiff and defendant. But the answer admits that on the fifth day of July, 1869, the plaintiff paid Worick the sum of $2,000 for said land, and thereupon said Worick conveyed said land to the plaintiff. There are other allegations in the amended answer, but they are not deemed material in the determination of this appeal.

The amended complaint makes no mention of the ownership of the land by Worick, or of the contract between Worick and the defendant, but alleges that on the fifth of July, 1869, the plaintiff was seized in fee-simple of the land in dispute, and that on that day the plaintiff entered into a contract with one Isaiah Leonard, by which it was agreed that said Isaiah Leonard should purchase said land of the plaintiff for the sum of $2,800, to be paid within six years from that date, with interest at 10 per cent.; and said Isaiah Leonard was to pay taxes, build a dwelling-house on said land, make fences thereon, and keep the fences and improvements in repair; and that, upon paying said $2,800 and the interest, the plaintiff agreed to convey the said lands to said Isaiah Leonard; that Isaiah Leonard went into possession under said contract, and remained in possession for several years; and thereafter the said Isaiah Leonard sold, assigned, and conveyed his interest in said contract and premises to the defendant, and delivered the possession of the said premises to the defendant; and in consideration thereof the defendant agreed to perform all the conditions of said agreement to be performed on the part of said Isaiah Leonard. The complaint admits that there was paid on said contract $100, March 1, 1870; $100, June 22, 1870; and $200, March 7, 1871; alleges his readiness and willingness to convey said land on the payment of the balance due on the contract with Isaiah, the refusal of the defendant to make the payment, and demands judgment of strict foreclosure against the defendant.

To this amended complaint the defendant answered, first, the same matters set up in his amended answer to the original complaint; and a further answer denying the seizin of the plaintiff, “except so far as the facts stated in the amended answer to the original complaint constitute such seizin.” The answer then denies all knowledge of any contract for the sale of said lands by the plaintiff to Isaiah Leonard; denies that Isaiah Leonard ever went into possession of said land, except by the permission and sufferance of the defendant, and alleges that any occupation of the premises by the said Isaiah was the occupation and possession of the defendant, and that the same was adverse to the plaintiff's claim; denies that said Isaiah Leonard ever sold or transferred his interest in said land to the defendant, or that he ever delivered to the defendant any possession thereof; and also denies that he ever agreed with the said Isaiah, or with the...