Radant v. Werheim Mfg. Co.

• Decision Date: 27 April 1900
• Citation: 106 Wis. 600,82 N.W. 562
• Parties: RADANT v. WERHEIM MFG. CO.
• Court: Wisconsin Supreme Court

106 Wis. 600

82 N.W. 562

RADANT

v.WERHEIM MFG. CO.

Supreme Court of Wisconsin.

April 27, 1900.

Appeal from circuit court, Marathon county; W. C. Silverthorn, Judge.

Suit by August Radant, Jr., against the Werheim Manufacturing Company. From a judgment in favor of defendant, complainant appeals. Affirmed.

Action to remove a cloud on the title to real estate on the following facts: In 1873, when plaintiff was quite a boy, his father, August Radant, Sr., purchased the real estate in question for a home for himself and family and occupied the same as such thereafter, the son residing with him. March 25, 1889, Radant, Sr., conveyed the property to one Henry Gruenwald by deed absolute on its face for the purpose of securing a loan of money, taking back, as evidence of his interest in the property, a land contract. The deed and contract were immediately recorded in the office of the register of deeds of the proper county. A few days thereafter Radant, Sr., assigned his land contract to plaintiff, but the assignment was not recorded till May 27, 1897, during all of which time August Radant, Sr., to all appearance, was the owner of the property the same as he always had been, save and except for the mortgage thereon created by the transactions with Gruenwald as before stated. The land contract was assigned to plaintiff partly as a gift from the father and partly in consideration of what plaintiff had done by way of improving the property. In 1895 the Radants obtained some building material of the defendant for use in constructing a building on the land. The plaintiff intended in the transactionto become the defendant's debtor for the building material, but defendant supposed its customer was Radant, Sr. The material not being paid for a lien was filed on the property pursuant to the laws of this state relative to mechanics' and material men's liens, and thereafter an action was commenced to enforce such lien. The summons and complaint were served on Radant, Sr., but plaintiff, supposing he was the person intended to be sued, appeared in the action and answered. Plaintiff discovered on the trial that the real party sought to be charged was Radant, Sr., whereupon he withdrew his answer without disclosing the true state of the title to the property. He kept silent, with full knowledge of the facts, while defendant proceeded to perfect judgment against Radant, Sr., as the debtor and the owner of the property sought to be charged with such debt. Thereafter defendant proceeded to enforce such judgment by a sale of the property, whereupon this action was commenced to restrain such sale and to quiet the title to the property in plaintiff as against such judgment. On the trial the defendant offered to release its claim to a lien against the property on payment of the original indebtedness claimed in the complaint, which proposition plaintiff refused to accept. On such facts the court decided that defendant was entitled to a dismissal of the action and to recover its costs and disbursements of the plaintiff because of a defect of parties defendant, in that Henry Gruenwald, and others not necessary to be mentioned, were not joined as defendants, and for want of equity. Judgment was rendered accordingly.

Livermore & Dickinson (Bump, Kreutzer & Rosenberry, of counsel), for appellant.

Mylrea & Bird, for respondent.

MARSHALL, J. (after stating the facts).

The judgment appealed from is grounded, first, on a defect of parties, and, second, want of equity.

The first ground mentioned is untenable. A defect of parties must be taken advantage of by demurrer if it appears on the face of the complaint, otherwise by answer, or it will be deemed to have been waived. Kimball v. Noyes, 17 Wis. 695;Dreutzer v. Lawrence, 58 Wis. 594, 17 N. W. 423;Hallam v. Stiles, 61 Wis. 270, 21 N. W. 42. The objection that there is a defect of parties, either plaintiff or defendant, is never a good ground for the dismissal of a complaint on a trial upon the merits.

The second ground upon which appellant's claim was dismissed must be sustained, if at all, upon the familiar principle of equitable estoppel, that “he who keeps silent when in good conscience he ought to speak shall be debarred from speaking when conscience requires him to be silent.”

If appellant owed a duty of disclosure to respondent respecting his title, and, by failure to do so, respondent was led to incur expense to perfect his lien judgment and enforce it upon the belief that Radant, Sr., was the owner of...