McLennan v. Prentice

• Decision Date: 20 May 1890
• Citation: 77 Wis. 124,45 N.W. 943
• Parties: MCLENNAN v. PRENTICE.
• Court: Wisconsin Supreme Court

77 Wis. 124

45 N.W. 943

MCLENNAN

v.PRENTICE.

Supreme Court of Wisconsin.

May 20, 1890.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.T. L. Kennan and C. T. Kennan, for appellant.

Tomkins, Merrill & Smith, for respondent.

TAYLOR, J.

In the complaint of the appellant, the plaintiff in the court below, there were two causes of action stated at length. The first cause of action was, in substance, an action to recover for a breach of the covenants in a deed of the defendant, by which the defendant undertook to convey to the plaintiff lots 1, 2, 3, 4, 5, and 6, in block 23, in the city of Ashland,for a consideration, mentioned in said deed, of $6,000. In this cause of action the plaintiff alleges that the said deed contained the following covenants: “(1) That the defendant was lawfully seised of said block 23, and every portion thereof; (2) that the defendant has good right to convey said block, and every part thereof; (3) the defendant guaranties the grantee, [the plaintiff,] his heirs and assigns, the quiet possession of said block, and every portion thereof; (4) that the said deed contained a covenant by the grantor, his heirs and personal representatives, that said block 23 was free and clear from all incumbrances, and that the grantor, his heirs and personal representatives, will forever warrant and defend the title and possession thereof in the grantee, his heirs and assigns, against all claims whatever.” The complaint alleges in proper form breaches of all the covenants in said deed. In the first cause of action it is also stated that, in payment of a part of the $6,000, the purchase price mentioned in said deed, the plaintiff gave his promissory notes for the sum of $2,500, and, as security for the payment of said sum, he executed a mortgage to the defendant upon said block 23. The complaint also alleges that the plaintiff has never been in possession of said block 23, or any part thereof; that he has not conveyed the same, or any part thereof, by deed or otherwise, norin any way incumbered the same, except by the mortgage to secure the payment of said $2,500, part of the purchase money; and that before bringing this action plaintiff tendered to the defendant a deed reconveying said block 23 to the defendant, and demanded from him the surrender of his notes for said $2,500, and the payment to him of the sum of $3,500, with the lawful interest thereon, that being the sum paid by the plaintiff to the defendant as a part of the purchase price for said block. The second cause of action alleges that the defendant was guilty of fraudulent representations in making the contract of sale of said block to the plaintiff, and asks relief on that ground. In the view we have taken of the case on this appeal, it is unnecessary to set up the facts alleged in this second cause of action. The defendant, in his answer, alleges, among other things, “that at the time of said bargain and sale, and for more than ten years prior thereto, the defendant was the owner in fee, and entitled to the possession, of all the land contained in said block 23, and all the riparian rights and shore privileges connected therewith, and duly conveyed the same, and all thereof, to the plaintiff, by said warranty deed of April 2, 1887, as aforesaid, and by the delivery of said deed duly delivered to the said plaintiff the possession, and all the rights of possession, and seisin in, to, and of said block 23, and all thereof, as aforesaid.”

On the trial in the court below, the circuit judge made the following findings of fact and conclusions of law, viz.: “(1) That on the 2d day of April, 1887, at Ashland, Wis., the defendant sold to the plaintiff, for the sum of six thousand dollars, ($6,000,) all of block twenty-three (23) of Ellis' division of Ashland, according to the recorded plat thereof in the county of Ashland, state of Wisconsin, and duly executed, signed, sealed, and acknowledged, and delivered to the plaintiff as grantee therein, a warranty deed, in statutory form, of all of the above-described premises; (2) that said Frederick Prentice was, on the 2d day of April, 1887, the owner in fee of said premises, subject to a mortgage of Edwin Ellis for a portion of the purchase price thereof; (3) that prior to the commencement of this action the said defendant paid to said Ellis the full amount due on account of said mortgage, and then and there became the owner in fee-simple of the premises, free and clear of all liens and incumbrances; (4) that at the time of the sale of said premises by the defendant to the plaintiff, the said defendant made no false and fraudulent representations in regard to the title to said premises, or to the quantity of land contained therein; (5) that there has been no breach of covenants contained in the defendant's said deed to the plaintiff; and as a conclusion of law the court finds that the defendant is entitled to a judgment of no cause of action, and of a dismissal of the complaint, together with the costs herein, and the clerk is hereby directed to enter judgment accordingly.” To the second, third, fourth, and fifth findings of fact the plaintiff duly excepted. He also excepted to the conclusion of law. As stated above, we shall not consider upon this appeal whether the defendant made any false representations in regard to the title or quantity of land contained in said block 23.

After reading all the evidence contained in the...