Henry Uihlein Realty Co. v. Downtown Development Corp.
| Decision Date | 08 March 1960 |
| Citation | 101 N.W.2d 775,9 Wis.2d 620 |
| Parties | HENRY UIHLEIN REALTY CO., a Wis. corporation, Respondent, v. DOWNTOWN DEVELOPMENT CORP., a Wis. corporation et al., Appellants, Beacon Federal Savings and Loan Ass'n, a corporation, et al., Defendants. |
| Court | Wisconsin Supreme Court |
Wickham, Borgelt, Skogstad & Powell, Milwaukee, Reuben W. Peterson, Jr., Milwaukee, of counsel, for appellants.
Leekley & Williams, Steinmetz & Steinmetz, Milwaukee, for plaintiffs-respondents.
Quarles, Herriott & Clemons, Laurence C. Hammond, Jr., Milwaukee, for defendants-respondents.
Henry Uihlein Realty Company sold a parcel of real estate, located in downtown Milwaukee at the southwest corner of North Sixth street and West Wisconsin avenue, to the defendant, Downtown Development Corporation, by land contract dated June 6, 1955.
The contract in form and substance is one which is commonly known as a land contract, printed by the Wisconsin Legal Blank Company and known as Form No. 34, in common and general use for the sale of real estate on credit in the city of Milwaukee and throughout the state of Wisconsin. It contains the following provision, usual to contracts of this type:
'It is distinctly agreed and understood by and between the parties hereto, that, if the said party of the second part shall fail to make any of the payments of purchase money and interest above specified, at the times and in the manner above specified, or fail to pay the taxes and assessments, or fail to insure and keep insured the premises herein as above stipulated, or fail to pay any or all insurance premiums herein specified, or violate any other terms or conditions herein contained, this agreement shall, at the option of the said party of the first part, its successors or assigns, be henceforth utterly void, without any notice whatsoever, and all payments thereon forfeited, subject to be revived and renewed only by the act of the party of the first part, or the mutual agreement of both parties; and whenever such default or violation shall occur, the party of the second part shall have no further right to collect rents from tenants, if any, of the said real estate, or any part thereof, but such rents shall be collected by, and belong to the party of the first part.'
The contract provided for the payment of taxable costs, expenses and a reasonable attorney's fee in the event of foreclosure by the vendor. It provided that the vendor agrees and binds itself, its successors, representatives and assigns, upon full payment of the purchase price, with interest, and other moneys due under the terms and conditions of the contract, to convey the real estate by warranty deed to the purchaser, its assigns or legal representatives. The contract also provided: 'Any and all moneys received from city of Milwaukee pursuant to the widening of North Sixth street payable to the owner shall be applied on said balance when and as received * * *'
The purchase price was $1,000,000. $100,000 was paid at execution, and the balance was to be paid as follows: $100,000 or more on or before May 27, 1956; $100,000 or more on or before May 27, 1957, and $700,000 or the balance on May 27, 1958. Interest at the rate of four and one-fourth per cent per annum, beginning August 1, 1955, was to be paid on the unpaid balance. It was agreed, however, that interest would be waived during the time that Downtown Development Corporation was constructing a building on the property having a contracted cost of $1,000,000. Interest was waived accordingly from September 16, 1955, to March 20, 1956, when the construction was discontinued.
Taxes for the year 1955 were to be paid by the vendor and purchaser in proportions of 7/12ths and 5/12ths, respectively. The vendee agreed to pay when due and payable, all taxes and assessments thereafter assessed or levied on the real estate.
On July 5, 1955, the purchaser, Downtown Development Corporation, assigned its interest in the land contract to the defendant, Atomic Security Corporation, which on the same day assigned the land contract to the defendant, Beacon Federal Savings and Loan Association.
A portion of the premises were conveyed by the plaintiff to the defendant, Atomic Security Corporation, in consideration of the payment of $248,000 in December, 1956, and that parcel is released from the contract and is not a part of this proceeding.
The plaintiff in its complaint alleges upon information and belief, that the sum of $248,000 constituted the proceeds paid by the State of Wisconsin to acquire the parcel of land for widening North Sixth street. The complaint further alleges:
'That the defendants have failed to pay said purchase price in full in accordance with said contract and have paid on said contract only the sums set forth in the schedule of payments:
1955
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May 27 Check $5,000.00
June 6 Check 45,000.00
6 Commission applied 50,000.00
Aug. 18 Check 75,000.00
1956
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May 28 Check 25,000.00
Dec. 14 Check, City of Milwaukee 240,000.00
1957
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Jan. 29 Check 8,000.00
Total $448,000.00
1956
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Jan. 31 Interest paid 8/1/55 to 9/16/55 Date $4,675.01
excavation started
that the total sum now due to plaintiff on the purchase price provided for in said contract, together with interest at the rate of four and one-fourth per cent per annum on deferred payments to the 27th day of May, 1958, is $590,718.28; and that said sum is made up as follows:
Principal $552,000.00
Accrued interest as of 5/27/57 35,739.36
Unpaid interest on 5/27/58 2,978.92
$590,718.28
'That defendants have failed to pay a balance of the 1957 taxes accruing on the 1st day of January, 1958, and the plaintiff has been obliged to pay said taxes aggregating $11,501.40, including the interest on the amount so paid from the date payment was made to May 27, 1958; making a total of $602,219.68 due the plaintiff from the defendants, Downtown Development Corp. and its assignees, Atomic Security Corp. and Beacon Federal Savings and Loan Association on the 27th day of May, 1958.'
The premises are operated as a parking lot in possession of defendants.
The complaint demands that the court set a reasonable time within which the amount due under the contract be paid and in default thereof that defendants be barred and foreclosed of all right and interest in the premises.
The answer of the defendant, Downtown Development Corporation, fails to deny any allegations of the complaint, but does allege the assignment of the land contract by it to the defendant, Atomic Security Corporation. The trial court treated the answer as disclaiming any right or interest in the premises and as a prayer to have the action dismissed as to Downtown Development Corporation.
The answer of the defendants Beacon Federal Savings and Loan Association and John F. Clorus, conservator for Beacon, fails to controvert material issues of the complaint, but does demand that the court adjudge the amount due under the land contract with interest due thereunder, together with plaintiff's costs and disbursements and disbursements as determined in this action, reasonable attorney's fee, if any, as may be allowed by the court and thereupon to have conveyed by the plaintiff to Beacon Federal Savings and Loan Association a good and sufficient warranty deed in fee simple, conveying the property described in the plaintiff's complaint, exclusive of the property sold to the State of Wisconsin.
The answer of defendant, Atomic Security Corporation, while not disclosing its particular interest in the real estate, admits its default on the land contract, puts the plaintiff to its proof as to the amount due and owing and alleges that certain extensions of time for payment have been granted by the plaintiff to the answering defendant.
As an affirmative defense the defendant Atomic Security Corporation alleges the payment of $448,000 on principal, the expenditure of more that $100,000 in capital improvements to the property, that the fair market value of the property exceeds $1,250,000 and that to grant relief by way of strict foreclosure would result in unjust enrichment to the plaintiff.
The same facts are pleaded by defendant Atomic Security Corporation by way of counterclaim for judgment of restitution in the sum of $558,000.
Defendant Atomic Security Corporation prays for judgment allowing a period of at least 18 months for redemption and in the event the premises are not redeemed by defendant, and in the alternative, that judgment be entered in defendant's favor for $558,000.
The record discloses that on December 7, 1956, the plaintiff granted an extension of time to pay interest in the amount of $35,739.36 to May 27, 1957. Another extension was granted on October 4, 1957, extending the time to pay interest of $35,739.36 plus principal of $552,000 to May 27, 1958.
The real estate was appraised as...
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...163; Levin v. Grant (1941), 238 Wis. 537, 298 N.W. 63, mandate withdrawn, 238 Wis. 537, 300 N.W. 169; Henry Uihlein Realty Co. v. Downtown Dev. Corp. (1960), 9 Wis.2d 620, 101 N.W.2d 775. Wisconsin is among the minority of states which allows strict foreclosure of the land contract rather t......
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...fails to perform within a time set by the court are the vendee's rights thereunder foreclosed.' Henry Uihlein Realty Co. v. Downtown Dev. Corp. (1960), 9 Wis.2d 620, 628, 101 N.W.2d 775, 779. However, the Wisconsin cases and writers generally explain strict foreclosure as a recission, voidi......
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...to the remedy of strict foreclosure for the vendee's default under the terms of a land contract. Henry Uihlein Realty Co. v. Downtown Dev. Corp., 9 Wis.2d 620, 627, 101 N.W.2d 775, 778 (1960). When default occurs under the terms of a land contract and a vendor pursues the remedy of strict f......
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