Hainz v. Kurth

• Decision Date: 15 March 1938
• Citation: 227 Wis. 260,278 N.W. 413
• Parties: HAINZ v. KURTH et ux.
• Court: Wisconsin Supreme Court

227 Wis. 260

278 N.W. 413

HAINZ

v.KURTH et ux.

Supreme Court of Wisconsin.

March 15, 1938.

Appeal from a judgment of the Circuit Court for Clark County; Edgar V. Werner, Judge.

Affirmed.

Action brought by Otto Hainz to compel specific performance by the defendants, William Kurth and his wife, Alvina Kurth, of an oral contract for the purchase of an acre of land by the plaintiff from the defendants. Originally the action was against William Kurth only, and his principal defense was that his conveyance was to be subject to a restriction that the plaintiff should not use the land for the sale of intoxicating liquors nor erect a tavern thereon. Upon a trial of that issue, the jury found against William Kurth in an advisory verdict. Then upon Alvina Kurth's intervening and being joined as a defendant, a new trial was ordered. The defendants filed answers alleging, in addition to the defenses stated in William Kurth's original answer, that the acre in question was a portion of the defendants' homestead, and that therefore an oral contract for the conveyance thereof was void under the statutes relating to the conveyance of a homestead. Upon a second trial, the jury again found that the conveyance contracted for was not to contain the alleged restriction as to the use of the premises. Thereupon the court, in connection with adopting that verdict, found that the defendants agreed on May 17, 1934, to sell the acre to the plaintiff for $190; that it was measured off and located one-quarter of a mile from the defendants' residence, that, in reliance upon the agreement between the parties, the plaintiff had paid the agreed price, went into possession thereof, and improved the property by moving a house and constructing a basement, filling station, and pumps thereon; and that prior to commencing this action he had demanded a conveyance thereof, but that the deed tendered by the defendants contained the alleged restriction as to the use of the premises. The court concluded that the plaintiff was entitled to a conveyance of the acre without any restriction or condition, and entered judgment that the defendants deliver their deed to that effect, or that, if they failed to do so, the judgment could be recorded and should have the same force and effect as if such a deed had been delivered. Defendants appealed from that judgment.

Rush & Devos, of Neillsville, for appellants.

H. G. Haight, of Neillsville, for respondent.

FRITZ, Justice.

[1][2] Upon this appeal the defendants assign as error that the question submitted to the jury, in respect to the issue as to whether a deed was to be delivered without the alleged restriction against the use of the premises, was not in proper form; and that the jury's verdict and the court's finding on that issue was contrary to the evidence. Apparently no objection was taken on the trial as to the form of the question submitting that issue to the jury. Consequently, a mere defect in the form thereof, which could have been corrected if timely objection had been made thereto on the trial, does not require a reversal. However, there does not appear to be any fatal defect in the question submitted, and the jury's finding thereof was but advisory. On the other hand, the evidence, although conflicting, fairly admitted of the jury's and the court's finding that the conveyance contracted for was not to contain the alleged restriction.

[3][4] Defendants further assign as error the court's finding and conclusion that the acre in question was not a portion of the defendant's homestead, and that the plaintiff was entitled to a warranty deed therefor executed by the defendants without the restriction; and the entry of judgment in favor of the plaintiff instead of for the defendants. Those assignments of error are based on the defendant's contention that because Mrs. Kurth elects to have the acre considered part of the defendants' homestead, their oral agreement for the conveyance thereof is invalid because she had not joined therein in writing as required under section 235.01, Stats. In order to pass upon that contention, it suffices to note the following facts and circumstances.

The acre fronts on an east and west highway that is the north boundary of a 40-acre tract which includes that acre and belongs to William Kurth. There is also a highway along the east line of that tract; and across and along the east side of that highway William Kurth owns 120 acres, in the northwest corner of which the defendants' residence is located close to the highway intersection. William Kurth's barns are however, in the northwest corner of the 40-acre tract across the highway, and the acre in question is to the west of those barns and 22 1/2 rods west of that highway. In order to have that acre considered as part of the total of 40 acres which the defendants are entitled to hold as a homestead, they claim that they are entitled to select 20 acres, including the land on which their residence is located, in the northwest corner of the 120-acre tract, and also 20 acres, including the acre in question and the land on which their barns are located, in the northeast corner of the 40 acre tract. In so far as the area, context, and buildings are concerned, the defendants would be entitled ordinarily to have those two 20-acre tracts considered as their 40 acre homestead (Eaton Center Co-op. Cheese Co. v. Kalkofen, 209 Wis. 170, 244 N.W. 620); but in passing upon their right in that respect in relation to the plaintiff's rights, the following facts and circumstances must be taken into consideration. The oral negotiations in relation to the contract and the location of the acre sold thereby to the plaintiff were conducted partly in the defendants' residence, and with both of them present. With the knowledge and acquiescence of Mrs. Kurth, her husband measured and set off the particular acre, and they permitted the plaintiff to take possession thereof and construct his house and filling station thereon during the course of the following year, without either of them claiming that acre as part of their homestead until Mrs. Kurth intervened and answered herein after the jury verdict on the first trial.

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