Neff v. Rubin

• Decision Date: 16 November 1915
• Citation: 161 Wis. 511,154 N.W. 976
• Parties: NEFF v. RUBIN.
• Court: Wisconsin Supreme Court

161 Wis. 511

154 N.W. 976

NEFF

v.RUBIN.

Supreme Court of Wisconsin.

Nov. 16, 1915.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by Charles S. Neff against William R. Rubin. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover a part of the consideration paid on a land contract after an alleged rescission thereof by the plaintiff.

On the 21st day of September, 1914, plaintiff and defendant entered into a written agreement for the sale by defendant to plaintiff of certain lots in the city of Milwaukee for the price of $21,600. Plaintiff paid $600 down at the time of entering into the contract. By the contract it is agreed that:

“Upon payment of five thousand dollars ($5,000) the said W. R. Rubin will give to said Charles S. Neff, a warranty deed, subject to the mortgages aforesaid, together with an abstract of title. * * *”

One Louisa Veit, on the 26th day of September, 1910, sold and conveyed the lots here in question to the Advance Investment Company by deed which was duly recorded in the office of the register of deeds of Milwaukee county. This deed contained the following conditions and restrictions:

“It is mutually agreed and understood by and between the parties hereto that this deed is executed and delivered subject to the following covenants:

(1) That no building shall be erected upon said premises which shall project nearer to the center of the Lake Avenue toll road than 60 feet.

(2) That no part of said premises shall be used as a livery, selling, or boarding stable, or for any garage other than for private use, or for the sale of intoxicating drinks, or for any other business purpose, but that the said premises shall be used solely for residence purposes.

(3) That no residence shall be constructed upon said premises that shall be of design for more than one family, and no flat or apartment house shall be erected thereon.

(4) That no residence shall be erected upon said premises that shall cost less than $5,000.00, and that not more than one residence shall be built upon any one lot.

(5) That all outbuildings shall be of neat design, and shall not be built closer to the bluff line than 30 feet.

(6) That no billboards or advertising signs shall be placed upon any part of said lots.

(7) That each of the foregoing covenants shall remain in force for a period of 50 years from and after October 1, 1908, and shall be construed and deemed covenants running with the land, and shall bind the respective parties, their heirs, administrators and assigns, and upon the happening or suffering of either, any or all of the events or contingencies mentioned in said covenants Nos. 1, 2, 3, 4, 5, 6, and 7, this deed shall become forfeited, and the premises herein described and all the rights herein conveyed shall at once revert to and revest in and become the property of the party of the first part, her heirs or assigns (without any declaration or forfeiture, or act of re-entry, or without any right of the party of the second part, heirs or assigns, to reclamation or compensation for moneys paid or improvements made), as absolutely and perfectly as if this deed had never been made.”

On February 11, 1913, the Advance Investment Company sold and by deed conveyed the lots to the defendant under which deed the defendant asserts title.

On the 13th day of October, 1914, the defendant submitted abstracts of title of the lots to the plaintiff. Upon examination of the abstracts of title, and being informed of these restrictive covenants, the plaintiff immediately demanded that the lots be released from these restrictions so as to enable the defendant to deliver a warranty deed thereof according to the terms of the written agreement. After negotiations between the parties the plaintiff on October 28, 1914, caused the following letter to be sent to the defendant:

“Mr. W. B. Rubin, care Messrs. Rubin & Zabel, Milwaukee--Dear Sir: Replying to yours of October 26th, I am directed by my client, Mr. Charles S. Neff, to say that he will carry out his agreement with you.

It is needless to say, that in this regard he is not acting in accordance with my advice.

On receiving from you the warranty deed called for by the agreement of September 21st, he will give the mortgages required by the contract as of the date they were therein required to be executed, and make the cash payment, to wit, $5,000, together with interest thereon from the time it was due under the contract until paid.

Will you kindly prepare the deed and mortgages required under the contract and submit them to me for examination and approval?

Please send me at once by bearer, the abstracts of title, so that I may complete my examination of them. Yours very respectfully,

+-------------------------+
                ¦[Signed]¦Frank M. Hoyt.” ¦
                +-------------------------+
                

The defendant failed to have the restrictions removed, and tendered a deed with these restrictions on the title, which plaintiff refused, and thereupon demanded that defendant repay the $600 he had paid to defendant at the time of entering into the written contract. Defendant refused to return the money, and has never returned it; hence this suit was instituted.

The circuit court directed a verdict for the plaintiff in the sum of $600, and interest on the same from November 2, 1914, amounting in all to $626. Judgment was entered accordingly, and this is an appeal from such judgment.

Rubin, Fawcett & Dutcher, of Milwaukee (Paul R. Newcomb, of Milwaukee, of counsel), for appellant.

Frank M. Hoyt, of...