Lyndon Lumber Co. v. Sawyer

• Decision Date: 08 May 1908
• Citation: 116 N.W. 255,135 Wis. 525
• Parties: LYNDON LUMBER CO. v. SAWYER.
• Court: Wisconsin Supreme Court

135 Wis. 525

116 N.W. 255

LYNDON LUMBER CO.

v.SAWYER.

Supreme Court of Wisconsin.

May 8, 1908.

Appeal from Circuit Court, Washington County; Martin L. Lueck, Judge.

Action by the Lyndon Lumber Company against Hiram W. Sawyer. From an order overruling a demurrer to the answer and counterclaim, plaintiff appeals. Reversed and remanded.

Bashford, J., dissenting in part.

Appeal from an order of the circuit court overruling plaintiff's demurrer to defendant's answer and counterclaim.

The complaint alleged that the plaintiff was a Mississippi corporation, and that defendant was a resident of Wisconsin at the time of the purchase of the property in question from the defendant; that on May 21, 1903, defendant was the owner of the premises in question which were situated in Mississippi; that defendant and his wife on that day transferred the lands to plaintiff by deed; that plaintiff accepted the transfer and took possession of the lands under such deed, the deed specifying the consideration, and that defendant thereby did “grant, bargain, sell, convey, and warrant” to plaintiff the lands therein described; that the deed was executed and delivered in the city of Chicago; and that there was no seal affixed to the signatures of the defendant and his wife. The complaint alleges that the law of Mississippi provides that private seals are dispensed with, except as to corporations, and that the distinction between sealed and unsealed instruments, as to rights conferred or the remedies thereon, is abolished. It also alleged that the statutes in force in Mississippi when the deed was made, as to forms of conveyances and the effect of the use of the words “grant,” “bargain,” and “sell” and the warranty in conveyances, declares that “ ‘grant, bargain, sell’ shall operate as an express covenant to the grantee, his heirs and assigns, that the grantor was seised of an estate, free from incumbrance made or suffered by the grantor except the rents and services that may be reserved, and also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in the conveyance; and the grantee, his heirs and assigns, may in any action assign breaches as if the covenants above mentioned were expressly inserted.” Section 2440 (1196), c. 70, Ann. Code Miss. 1892. It is further alleged that section 2480 (1233), c. 70, Ann. Code Miss. 1892, declares that “the word ‘warrant’ without restrictive words in a conveyance shall constitute a covenant by the grantor that he and his heirs and personal representatives will forever warrant and defend the title of the property unto the grantee and his heirs, representatives and assigns, against the claims of all persons whomsoever lawfully claiming the same.” The complaint also alleges that the premises were not free from all incumbrances at the time of the making and delivery of the deed, but that they were subject to a duly assessed and levied tax under the laws of Mississippi, amounting to $324; that such tax was a subsisting lien on the premises at the time they were so conveyed, and that plaintiff was compelled to pay these taxes on February 1, 1904, to prevent a sale of the premises for unpaid taxes, and to protect its interest in the lands; and that when plaintiff so paid the taxes defendant became indebted to plaintiff therefor, but has refused to pay their amount, though requested so to do.

The defendant answered the complaint, admitting plaintiff's incorporation, his residence, and the conveyance of these lands to plaintiff on May 21, 1903. He alleges that Carter & Kennedy of Hattiesburg, Miss., held an option from him for the purchase of the lands upon the terms therein specified; that a transfer under the option was to be made at either Milwaukee, Wis., or Chicago, Ill., upon payment of the specified purchase price; that he had no negotiations with the plaintiff other than through Carter & Kennedy; that the lands were transferred to plaintiff under this option at Carter & Kennedy's direction; and that, for the convenience of Carter and Kennedy, the transfer was made pursuant to the option, and executed at Chicago, Ill. Defendant alleges that all the taxes assessed and levied upon the lands embraced in the deed had been paid at the time of the conveyance, and that the lands were clear from tax liens and claims, and that he had no knowledge or information sufficient to form a belief as to the allegations of the complaint respecting the existence, at the time of the execution and delivery of the deed, of liens for taxes on the lands for the year 1903 under the laws of Mississippi. For further defense and as an equitable counterclaim defendant alleges that he and Carter & Kennedy entered into an option agreement before this transfer, whereby he agreed to convey these lands to them upon the terms stipulated, which contained no stipulation that he was to pay the 1903 taxes on the premises; that Carter and Kennedy as principal stockholders and officers in plaintiff company directed that the transfer of the lands, under their option to purchase, be made to plaintiff, as was done by the deed in question; that Carter & Kennedy conducted all the negotiations for the transfer, and were fully informed of all the terms and conditions thereof; that Carter & Kennedy fully understood that payment of the taxes by defendant was not intended or included in the option agreement and that they and defendant understood and intended that defendant was not to be held for or required to pay the taxes for 1903 on these lands. Defendant further alleges that Carter & Kennedy, at the time of the execution of this deed, led defendant to believe that the lands were then free from all incumbrances, including taxes, and that they accepted the transfer of the title without any covenants against incumbrances. It is further alleged that Carter & Kennedy were fully informed as to the laws of the state of Mississippi, respecting the assessment and levy of taxes and as to the liens created thereby, if any; of the legal effect under Mississippi of the operative words, “grant, bargain, sell, convey, and warrant” in deeds; and that defendant was wholly ignorant as regards these matters of law; that Carter & Kennedy were fully informed of defendant's want of knowledge as to these matters; that they represented to defendant that they had caused the title to be examined and led defendant to believe that it was free and clear of incumbrances at the time of conveyance; and that defendant relied on the acts, conduct, and representations respecting all these matters involved in the transfer and was thereby induced to make and execute the deed at the time, in the manner and form as set out in the pleading. Defendant demands affirmative relief to the effect that plaintiff be precluded from enforcing the claim alleged, and, if necessary, that the deed be reformed so as to convey the premises subject to the taxes for the year 1903.

The plaintiff filed a demurrer to the answer upon the ground that it appears on the face thereof that it does not state facts sufficient to constitute a defense; and also demurred separately to the alleged counterclaim therein upon the ground that it does not state facts sufficient to constitute a counterclaim “(1) because said counterclaim does not state facts sufficient to constitute a cause of action; also (2) because the alleged cause of action stated in said counterclaim is not pleadable as a counterclaim in this action.” The court entered an order overruling the demurrers. This is an appeal from such order.

Kuechenmeister & Barney, for appellant.

E. W. & H. A. Sawyer, for respondent.

SIEBECKER, J. (after stating the facts as above).

The...