Jefferson Gardens, Inc. v. Terzan

• Decision Date: 06 November 1934
• Citation: 216 Wis. 230,257 N.W. 154
• Parties: JEFFERSON GARDENS, INC., v. TERZAN.
• Court: Wisconsin Supreme Court

216 Wis. 230

257 N.W. 154

JEFFERSON GARDENS, INC.,

v.TERZAN.

Supreme Court of Wisconsin.

Nov. 6, 1934.

Appeal from a summary judgment of the Circuit Court for Milwaukee County; Gustav G. Gehrz, Circuit Judge. Affirmed.

Action by Jefferson Gardens, Inc., against Frank Terzan, commenced February 1, 1933. From a judgment in favor of the plaintiff entered January 24, 1934, the defendant appeals.

Charles L. Mullen, of Milwaukee, for appellant.

Gold & McCann, of Milwaukee (Morris Karon, of Milwaukee, of counsel), for respondent.

FOWLER, Justice.

The plaintiff sued at law in the civil court of Milwaukee county to recover $1,295; the portion of the purchase price of land due on a land contract remaining unpaid. The defendant by answer denied the execution of the contract, and alleged that the plaintiff fraudulently represented that it was the owner of the premises. In immediate connection with the charge of fraud the answer stated that there were two mortgages against the premises and that the plaintiff “wilfully concealed this fact from the defendant.” The defendant also interposed a counterclaim demanding recovery of $2,192.20 paid by him on the contract.

The plaintiff moved for a summary judgment under section 270.635, Stats. and presented in support of the motion an affidavit setting forth the land contract sued upon which was signed by the defendant and the president of the plaintiff corporation. The affidavit also stated that the mortgages against the land were both of record at the time the contract was signed and that by the terms thereof the land covered by the contract would be released from the lien of the mortgages upon payment of $258 on one of the mortgages and $216 on the other. No counter affidavit was presented by the defendant. The contract provided that, upon payment of the sum due on the contract, the plaintiff would convey the premises to the defendant free and clear of incumbrance.

The civil court first denied the motion for summary judgment, but on reconsideration granted it and entered judgment for the amount demanded in the complaint. The defendant appealed to the circuit court. That court affirmed the judgment of the civil court, and, as the plaintiff offered during the argument to deposit with the clerk of the court a deed of the premises, an abstract showing good title except as to the two mortgages, and releases of the premises from the liens of the mortgages all to be delivered to defendant on payment of the amount adjudged due, an order was entered staying execution for thirty days from the deposit of these documents and directing their delivery upon payment of the judgment.

[1][2] Our summary judgment rule was taken from the New York statute. This statute had been interpreted by the New York courts before it was adopted by court rule. When a statute of one state is adopted by the Legislature of another, the interpretation given by the courts of the state from which it was adopted is a part of the statute, and the courts of the state that adopt the statute adopt the interpretation previously given by the court of the other state. Ditsch v. Finn (Wis.) 252 N. W. 562. We accept and adopt the interpretation of the New York statute given by the New York courts. According to that interpretation, as the defendant did not deny the allegations of the affidavit presented by the plaintiff in support of its motion, the allegations of that affidavit are taken as true. Hoof v. John Hunter Corp. (Sup.) 193 N. Y. S. 91;Maltz v. Daly, 120 Misc. 466, 198 N. Y. S. 690;Saunders v. Delario, 135 Misc. 455, 238 N. Y. S. 337.

[3] The claim of nonexecution of the contract is based on the proposition that as section 235.19 (2), Stats., provides that a conveyance by a corporation of interest in real estate shall be signed by the president and secretary of the corporation, and the contract was signed by the president only, the contract was void, and therefore no contract was executed. This claim rests wholly upon a proposition of law, and is the only claim of defendant that he can stand upon, as the allegation of nonownership of the property evidently rests on the false assumption that the existence of the mortgages negatives ownership in the plaintiff, and the bare allegation in the answer that the plaintiff willfully concealed from defendant the existence of the mortgages is manifestly insufficient to state a defense or a counterclaim for recovery of payments made on the ground of fraud.

[4][5] The claim that the contract is void because not signed by the secretary of the corporation is without merit. Granting that the land contract conveys to the vendee an interest in the land covered by it, the statute relied on only affects the recordability of the contract and the rights of subsequent purchasers of the land who purchased from the vendor in ignorance of the existence of the contract. The contract is good between the parties. This was settled as the law of this state by the decision in Leinenkugel v. Kehl, 73 Wis. 238, 40 N. W. 683, which reviewed the earlier decisions of this court and has been consistently followed ever since. Welsh v. Blackburn, 92 Wis. 562, 564, 66 N. W. 528;Harrass v. Edwards, 94 Wis. 459, 463, 69 N. W. 69;Martin v. Anderson, 111 Wis. 387, 392, 87 N. W. 226. These cases involve deeds not witnessed or acknowledged according to the statute. But the provision respecting the signatures of the president and secretary of a corporation is incorporated in the same statute with those respecting witnesses to signatures and acknowledgment. Section 235.19. The one provision of the statute is subject to the same construction as the others, so far as the purpose of the provisions and the effect of noncompliance are concerned. The president of the plaintiff corporation was authorized to act for the corporation in the matter, and any memorandum satisfying the statute of frauds, sections 240.06 and 240.08, Stats. 1933, signed by an authorized agent of the vendor, is valid and enforceable. Douglas v. Vorpahl, 167 Wis. 244, 166 N. W. 833;Russell v. Ives, 172 Wis. 123, 178 N. W. 300.

[6][7] The defendant contends that the summary judgment statute does not apply because, under a statement in the opinion in Harris v. Halverson, 192 Wis. 71, 77, 211 N. W. 295, the vendor in a land contract is limited to one of three remedies, strict foreclosure, suit for specific performance, or an action to declare the contract at an end; that, as this action is neither one of strict foreclosure nor to terminate the contract, it is necessarily one for specific performance; and that specific performance is an equitable action, of which the civil court of Milwaukee county has no jurisdiction and to which the summary judgment statute does not apply. It is true that specific performance is an equitable remedy. Ordinarily, when...