Kend v. Crestwood Realty Co.

• Decision Date: 10 January 1933
• Parties: KEND ET AL. v. CRESTWOOD REALTY CO. ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 239

246 N.W. 311

KEND ET AL.

v.CRESTWOOD REALTY CO. ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1933.

Appeal from an order of the Circuit Court for Milwaukee County; Walter Schinz, Circuit Judge.

Action by Adolf Kend and another against the Crestwood Realty Company and another. From an order overruling defendants' demurrer to the amended complaint, defendants appeal.--[By Editorial Staff.]

Reversed and remanded, with directions.

The order in question was entered April 16, 1932, and overruled the demurrer of defendants to the amended complaint of the plaintiffs. Defendants appeal.Baehr & Charness, of Milwaukee (David Charness, of Milwaukee, of counsel), for appellants.

John E. Kitzke, of Milwaukee, for respondents.

WICKHEM, J.

[1] The action was brought by plaintiffs for cancellation of a land contract entered into between plaintiffs and the defendant Crestwood Realty Company, which latter company assigned its interest to the defendant Herbert Finance Company. The complaint alleges that the Crestwood Realty Company had platted certain lands known as Crestwood addition; that this company, through its officers, represented to plaintiffs “that the said premises were restricted and set aside for business purposes”; that plaintiffs, in reliance upon these representations, entered into the land contract in question, whereby they agreed to purchase and pay for the premises involved; that in October, 1927, the county of Milwaukee rezoned the premises and restricted their use to residential purposes; that in February, 1928, the Crestwood Realty Company transferred its interest in these premises to the Herbert Finance Company, subject to the land contract; and that the Herbert Finance Company is unable to give plaintiffs such a title as was contemplated by the land contract. The question involved in this case is apparent from the facts as thus set forth. A vendor under a land contract agrees that the premises which he is to sell may be used for business purposes. He further agrees that a warranty deed will be issued upon the discharge of certain payments and conditions, conveying a title free and clear of incumbrances. A subsequent zoning law forbids the use of these premises for business purposes. It is contended by the plaintiffs that this has made it impossible for the defendant to convey an unincumbered title. We think there is no merit to this contention.

[2] This court has recently held, in Miller v. Milwaukee Odd Fellows Temple, 206 Wis. 547, 240 N. W. 193, that the restrictions created by a zoning law are not incumbrances. Nor can this case rest upon misrepresentations by the vendor or agreements in the land contract. There was no misrepresentation of a present existing fact. There was no understanding that the premises, under all...