McLennan v. Church

• Decision Date: 23 May 1916
• Citation: 163 Wis. 411,158 N.W. 73
• Parties: MCLENNAN v. CHURCH ET AL.
• Court: Wisconsin Supreme Court

163 Wis. 411

158 N.W. 73

MCLENNAN

v.CHURCH ET AL.

Supreme Court of Wisconsin.

May 23, 1916.

Appeal from a Judgment of the Circuit Court for Polk County; Martin L. Lueck, Circuit Judge.

Action for specific performance of a land contract.

The following is, in substance, the findings of fact made by the trial court, and indicates the nature of the evidence and of the issues raised by the pleading:

1st. On October 11, 1912, defendant, L. F. Church, and wife, contracted in writing to sell plaintiff, for $4,200.00, and convey to him by March 1st, 1913, the south half of the northeast quarter of section 31, town 32, range 15 west, in Polk County, Wisconsin.

2nd. About the contract date, plaintiff paid on the agreement $674.00. January 22d, 1913, he paid, at said defendants' request, $21.16 taxes on the southwest quarter of the southwest quarter of said land, and, at defendant Ray Church's request, $12.71 taxes on the other forty.

3d. At the date of the contract, plaintiff knew said Ray Church owned the first mentioned forty and that in November, 1912, defendant, L. F. Church and his wife executed a deed of both forties to plaintiff and left it with said Ray Church, expecting it would be executed by him and delivered to plaintiff by March, 1913, upon the balance back on the contract being paid, but it was not acknowledged by L. F. Church and wife nor signed by Ray Church, as plaintiff well knew.

4th. After the deed was signed by L. F. Church, he removed to Minnesota and plaintiff caused some plowing to be done on the land without the knowledge or consent of Ray Church.

5th. In December, 1912, plaintiff, at Ray Church's request, paid off a mortgage on the latter's land at an expense of $523.75, expecting he, in due time, would convey the land under the contract. February 22, 1913, plaintiff at L. F. Church's request, paid off a mortgage on the latter's land at an expense of $320.00, expecting that he intended to convey said land as he had agreed, and paid $4.00 to bring the abstract down to date.

6th. Defendant, Ray Church, until March 6, 1913, induced plaintiff to believe that the aforesaid deed would be executed and delivered in consummation of the land contract, and, so, neglected to make due tender of the balance due thereon and demand such delivery.

7th. February 18, 1913, plaintiff contracted in writing to sell the land to defendant Curby for $5,200.00, of which $100.00 was paid down.

8th. About March 25, 1915, when Curby expected to pay up on his contract and go into possession of the land, he was informed by plaintiff that he was unable to get title thereto from the Churches, and April 6, thereafter, said Curby surrendered his contract and received back the down payment, advising plaintiff that he had acquired title to the land from the Churches, as the fact was, he having purchased of them at $4,900.00.

9th. Curby did not intend to wrong plaintiff. He made his purchase believing that plaintiff's contract with the Churches had expired; but he had knowledge of facts requisite to charge him with such information as plaintiff could have given him upon inquiry in respect to the matter.

10th. About March 6, 1913, L. F. Church obtained the aforesaid deed he had signed for plaintiff, and then Ray Church informed plaintiff that he had lost all rights under his contract by reason of delay.

11th. Shortly after April 1, 1913, plaintiff duly tendered to Curby $2,683.79 and demanded a conveyance of the premises, presenting an instrument for execution to that end, which tender and demand were refused. Said Curby was then in possession of the premises under his deed from the Churches which had been duly recorded.

12th. When the deed was made to Curby he mortgaged the premises to L. F. Church for $3,000.00 of the purchase money which he owes.

13th. The annual rental value of the premises is $250.00.

Upon such facts the court held this: Plaintiff is not entitled to specific performance of his contract. He is entitled, as to Ray Church, to have the mortgage, which he paid off at said Church's request, revived. He is entitled to judgment against L. F. Church for $1,555.87 paid out on account of his contract, with interest on the sums composing the aggregate from the time he paid the same, and to have the judgment made a lien upon the premises in question prior to the $3,000 mortgage given by Curby for purchase money. Curby, as to the Churches, is entitled to pay off said judgment for $1,555.87 and interest and to be credited therewith on his mortgage indebtedness and to have the mortgage securities deposited with defendants' attorneys subject to the direction of the court for his protection. Paymentof the $1,555.87 and interest as aforesaid shall relieve the premises of any claim of plaintiff.

Judgment was rendered accordingly with provision as to costs, except the aggregate of the personal judgment was fixed at $1,801.49 and was made a lien superior to the $3,000.00 mortgage upon one forty acre tract, the title to which was in L. F. Church at the time he contracted with plaintiff.

Plaintiff appealed, claiming that he should have specific performance as prayed for, or be made as good as he would have been had he been permitted to carry out his contract to sell the premises to Curby.

Kennedy & Yates, of Amery, for appellant.

Coe Bros., of Barron, for respondents.

MARSHALL, J.

[1] The first complaint made on behalf of appellant is that the court erred in finding that, at the time of making the contract with L. F. Church, plaintiff knew Ray Church held the title to one forty of the land. That does not seem to be material, so we will pass the question of whether the finding has support in the evidence. L. F. Church contracted to sell both forties to appellant. That he might properly have done and expected to perform by procuring the title to the forty which was in Ray Church before maturity of the agreement or at such maturity procure co-operation of Ray Church to enable him to consummate his promise. Appellant, obviously, had a right to rely upon his executory vendor either having the title or procuring it so as to carry out his promise. The trial court probably thought the circumstance, as found, was material to whether appellant was so warranted in appealing to equity for relief as to be vital to the question of whether he could recover damages of a legal nature in the action in case of relief by judgment for specific performance not being proper.

[2] It is not the law, as seems to have been thought, and as counsel for respondents suggest, that in all cases where specific performance is sought and is not obtainable because of facts known to the plaintiff when he commenced his action therefor, that the court cannot or should not grant other relief by way of compensation, even though it be such as would be a proper subject of an action at law for damages. There are decisions along that line, as Combs v. Scott, 76 Wis. 662, 45 N. W. 532, cited to our attention by counsel for respondents; but they do not indicate the limitation of the rule on the subject. It may be broadly stated thus: In case of an action having been commenced in good faith to obtain equitable relief, and it subsequently appearing that such relief cannot, or ought not to be, granted, but the facts disclosed by the evidence show that plaintiff has suffered a remediable wrong in the transaction forming the groundwork of the action, entitling him to be compensated by money damages, the court may, and where justice clearly requires it under the circumstances, should retain the cause and afford such relief, and make the same efficient by provisions for a recovery as in an ordinary legal action or as are appropriate to a judgment for equitable relief, as may be best suited to the circumstances of the particular case. Stevens v. Coates et al., 101 Wis. 569, 78 N. W. 180;Gates v. Paul, 117 Wis. 170, 94 N. W. 55;Knauf v. Tesch Co., 153 Wis. 306, 141 N. W. 701, 48 L. R. A. (N. S.) 744.

The cases cited and many others which might be referred to leave no manner of doubt as to the extent of the doctrine above mentioned as it has been applied in recent years. In the first case this language was used:

The “rule applies where a cause of action in equity once existed; but from the happening of some event it no longer exists, or a person, in good faith believing he has a cause of action in equity, alleges facts accordingly, yet fails as to some essential element on the trial because it never existed, but, nevertheless, establishes a good cause of action for recovery at law.”

In the next case this was held:

“If one sues in equity in good faith and fails to establish his cause but shows a state of facts entitling him to recover at law, the court, having rightfully obtained jurisdiction for a proper purpose, may retain the cause and grant just such relief as upon the facts the plaintiff appears entitled to, whether at law or in equity.”

In the last case the rule was thus stated in respect to the precise point here involved:

“The mere circumstance of itself that appellant knew the facts when the action was commenced would not require a dismissal because of facts not being established warranting equitable relief if, notwithstanding, good cause for legal relief was shown. Having properly acquired jurisdiction, in such a case, a court of equity has very broad power to wind up the entire controversy appearing from the pleadings and evidence, whether legal or equitable relief, or both, be required.”

[3][4] Under our judicial system, there are no distinctions between actions at law and suits in equity. We have only the civil action of the code as an instrumentality to redress or prevent wrongs, triable with or without a jury according to whether the nature of the relief demanded is legal or equitable. There is but one court and one form of action; therefore, up to the point where the constitutional right of trial by jury would be unduly prejudiced by going further, there...