Home Acres Co. v. Swenson-Dibble Land Co.
| Decision Date | 06 February 1923 |
| Citation | 179 Wis. 556,192 N.W. 42 |
| Parties | HOME ACRES CO. v. SWENSON-DIBBLE LAND CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Dane County; Byron B. Park, Judge.
Action by Home Acres Company against Swenson-Dibble Land Company. From an order striking out portions of the answer, defendant appeals. Reversed and remanded.
The complaint alleges that the plaintiff and defendant and the Joseph M. Boyd Company and City Land Company are all Wisconsin corporations located in Madison; that on or about August 8, 1917, the defendant, together with the Boyd Company and the City Land Company, entered into a contract which was not witnessed or acknowledged by any of the parties; that for the purpose of clouding the title of the plaintiff to the land involved in the contract and to hinder the plaintiff in the management and sale of the property the defendant, on or about October 29, 1921, caused the same to be witnessed and acknowledged as to the defendant and to be recorded in the Dane county registry; that on or about August 8, 1917, defendant executed and delivered to the City Land Company a deed of the premises; that thereafter the City Land Company conveyed the land to the plaintiff, and assigned to the plaintiff all interest in the contract; that the plaintiff and its predecessor had fully kept all the agreements in the contract; that pursuant to the contract the City Land Company executed and delivered a mortgage and trust deed on the premises to secure the payment of $85,000 of its bonds which are unpaid and which were purchased by the Boyd Company as provided in the contract; that plaintiff and its predecessor, pursuant to the contract, had conveyed portions of the land, and that all the rights of the defendant in the land had ceased August 8, 1919; that defendant had not exercised any of the options or privileges named in the contract and retained no interest in the land; and that all its rights wholly ceased August 8, 1919, at which time no profits had been realized; that defendant claims an interest in the land, and therefore had caused the contract to be recorded, and that such registry will interfere with the management and sale of the premises.
Plaintiff prayed for the relief that the contract be expunged from the records and that defendant be adjudged to have no interest in the land and no demand against the plaintiff, and, if it be determined that the defendant has any interest therein, that the same be foreclosed within such short and reasonable time as may be just, and that, if it be determined that defendant has any claim against plaintiff that there be an accounting; and for such other relief as may be just.
The agreement above mentioned was made part of the complaint, and was entered into August 8, 1917, between the Swenson-Dibble Land Company, first party, Boyd Company, second party, and the City Land Company, third party. It recited that the first party had 680 acres of land in Dane county, Wis., and described the same; that certain drainage taxes had been assessed against the land, and certain drainage bonds issued for laying a tile drainage system; that the Bank of Wisconsin had advanced to the first party $10,545; that the Boyd Company had advanced to the first party $24,039.20; that the Boyd Company had paid a first mortgage to E. M. Fuller amounting with interest to $31,568.65, making a total indebtedness to the second party of $55,607.85; that the first party had made a cash investment in the land of $17,500; that it was estimated that certain charges and expenses incident to the development of the lands would be $10,000 per year for 1918 and 1919; that the first party was unable to meet the present or future obligations, and desired to secure the assistance of the other two parties to aid in saving its enterprise; that in order to accomplish this purpose it was deemed best by all parties that said lands be deeded to the third party; and--
“that the third party be given absolute power, in its own discretion, to sell, deed, manage, and control the said lands, until the same shall have been converted into cash, subject only to the provisions hereinafter set forth for a division of the net profits to be paid to the first party.”
It was further recited that in order to accomplish these purposes the Boyd Company was willing to buy an $85,000 issue of bonds to be secured by mortgage on the property. Then followed this section:
It was further agreed that the third party should execute and deliver a trust deed of the lands to secure such bond issue, due in five years with 6 per cent. interest, payable semiannually, with privilege of release and payment in accordance with terms to be determinated by the third party. The Boyd Company agreed to purchase the bonds at 90 cents on the dollar, making the net proceeds $76,500, to be handled by the Boyd Company as follows:
“1. Payment to the Bank of Wisconsin of its note and interest to amount to $10,545.
“2. Payment to the second party for money advanced with interest amounting to $24,039.20.
“3. Payment to the second party for money paid upon the Fuller mortgage, amounting to $31,568.65.
“4. The balance, amounting to $10,347.15, shall remain with the second party, at eight per cent. interest, per annum, to be credited annually to the account, subject to the order of the board of directors of the third party as hereinafter provided.
It was further agreed that the balance in the hands of the second party should be disbursed by the board of directors of the third party in the payment of drainage and general taxes, drainage bonds and interest, and for such other purposes in the discretion of the directors of the third party as might be necessary or expedient for the development and sale of the property and that, when in the discretion of said directors there was money available for distribution as profits, distribution might be made. The fifth, sixth, seventh, and eighth sections of the agreement were as follows:
“Fifth. When said lands have been sold and cash realized for the same, and all the incumbrances now existing, or hereafter created upon said lands, paid, and all obligations which may have been incurred by the third party in the management, sale and development of said lands liquidated, and the first party repaid the sum of $17,500 with interest at six per cent. from the date hereof (being its cash investment) then the balance, if any, shall be divided equally between the first party and the third party. It is the intention that, after all debts have been paid, third party shall be paid one-half of the net profits realized from said lands for its services in connection therewith, and that the first party shall have an equal amount of the net profits with the third party as representing any interest which it may now have in said lands.
Sixth. This agreement shall terminate at the end of two years from the date hereof. In the event that all of said lands are not sold within the said period of two years, then the third party may, at its option, extend this agreement for an additional period of one year, provided such decision be expressed, in writing, to the first party at least sixty days prior to the termination hereof. Like extensions may be made in like manner by the third party for one year periods until all the said lands are sold.
Seventh. The first party is hereby granted the option, until and including the eighth day of September, 1917, to pay to second party the face value of the City Land Company bonds, with accrued interest less the discount of $8,500 paid to the second party, or a net amount of $76,500, and upon making such payment, shall receive from the third party a quitclaim deed of said lands and a relinquishment of any claim which the second party and the third party may have to any land contracts, cash, or other property belonging to the third party, realized from the sale of the City Land Company bonds, the sale of said lands, or from any other source. During the period of this option, third party agrees that no part of said lands shall be sold for less than $250 per acre.
Eighth. In the event that the third party fails to exercise its option to renew this contract or any subsequent extension thereof, then the first party may, for the thirty-day period beginning sixty days and ending thirty days prior to the termination of this agreement, or any subsequent extension thereof, secure from the third party a quitclaim deed of said lands, and a relinquishment of any claim which the second party and the third party may have to any land contracts, cash or other property belonging to the third party which has been realized from the sale of the City Land Company bonds, or from the sale of said lands, upon the payment to the second party of the par value and accrued interest of all the City Land Company bonds outstanding and, in addition, upon the payment to the third party of the sum of $10,000 as ‘liquidated profits' in lieu of the profits provided for in paragraph Fifth hereof.”
The contract was duly executed, but not witnessed or...
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...in which the right to appeal directly from such an order was not challenged, the orders were reviewed. See Home Acres Co. v. Swenson-Dibble L. Co., 179 Wis. 556, 192 N. W. 42;Fleischman v. Reynolds (Wis.) 256 N. W. 778; and also Slama v. Dehmel (Wis.) 257 N. W. 163, 164, 167, in which we sa......
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...the defendant to state his defenses separately, if more than one be stated. We call attention to the case of Home Acres Co. v. Swenson-Dibble Co., 179 Wis. 556, 192 N. W. 42, wherein an appeal from an order striking out portions of an answer and counterclaim was entertained and the order re......