Saros v. Carlson

• Decision Date: 09 November 1943
• Citation: 244 Wis. 84,11 N.W.2d 676
• Parties: SAROS v. CARLSON et al.
• Court: Wisconsin Supreme Court

244 Wis. 84

11 N.W.2d 676

SAROS

v.CARLSON et al.

Supreme Court of Wisconsin.

Nov. 9, 1943.

Appeal from a judgment of the County Court of Polk County; Howard D. Blanding, Judge.

Suit by Gust A. Saros against Le Roy Chell Carlson and others for specific performance of a contract of sale of certain land. Judgment for plaintiff, and John G. Chell and another appeal.-[By Editorial Staff.]

Judgment modified, and as modified, affirmed.

Suit begun by Gust A. Saros, December 18, 1941, against Le Roy C. Carlson, Doris Carlson, Elsie Carlson, John G. Chell and Emma Chell for specific performance of a contract of sale of certain land. Judgment was granted plaintiff. John G. Chell and Emma Chell appeal.

Hilda Carlson died in 1929 leaving her property in trust for her children: Le Roy and Elsie Carlson. C. A. Carlson was appointed trustee when John G. Chell who had been named by the testatrix declined to act. In her will Mrs. Carlson provided that the trustee was to have the power to grant, sell, convey and dispose of any lands she possessed and that “all my estate be invested and kept safely and conservatively invested in good interest bearing securities and I leave to my trustee the time and manner of sale and conversion of any of my property, it, however, being my wish that he use such diligence as is consonant with good judgment in speedily converting my said trust estate into such interest bearing securities.” The terms of the trust were that the estate was to be paid in equal shares to each beneficiary upon his reaching the age of 24. Elsie became 24 years of age April 8, 1938. All the property had not then been converted and no division was made. Le Roy was 24 years old on April 2, 1940, and C. A. Carlson, the trustee, was discharged by the county court on May 13, of that year. But before that discharge was granted, C. A. Carlson, pursuant to the terms of the trust, entered into an agreement to sell the premises here involved which were included in the trust res to plaintiff for $260. Le Roy Carlson joined with C. A. Carlson in executing the memorandum of agreement of sale. It reads:

“I received of Gust A. Saros ($5.00) five dollars for down payment on 40 acres of land and balance of $255.00 to be paid when clear title is delivered to Gust A. Saros.

“S. E. quarter of the S. E. quarter of section 11 township 37 north range 17 west except that portion lying north of the center line of the public highway which runs east and west through the northern portion of said land being about 39 acres.”

On June 12, 1940, Elsie Carlson and Le Roy Carlson and Le Roy's wife signed a quitclaim and Le Roy and C. A. Carlson presented to plaintiff this deed of the premises. Plaintiff upon the suggestion of his attorney expressed a preference for a warranty deed. Although Elsie Carlson was not present, the Carlsons agreed to have such an instrument executed. It does not appear that there was any serious objection on plaintiff's part to his accepting the quit-claim deed. It does appear that C. A. Carlson and Le Roy assented to the request and that a warranty deed prepared by the attorney, Mr. Madsen, was taken by them with the promise that they would return it after having secured the signature of Le Roy's wife and his sister Elsie. Thereafter, the Carlsons decided they did not wish to sell the land to plaintiff. They did not return the quit-claim deed or execute the warranty deed; but on September 28, 1940 they conveyed the land to the defendant John G. Chell by warranty deed.

The case was tried to the court, and in addition to the facts stated above the court also found: That on August 17, 1940, a notice of Lis Pendens was duly filed in the office of the register of deeds in Polk county in an action in which this plaintiff and his son were plaintiffs and Le Roy Carlson, Doris Carlson and Elsie Carlson were defendants “the purpose of which was the same as the purpose of this action, towit to compel specific performance of the contract to sell”; that in that same month “the plaintiff had a conversation with John G. Chell in which Chell was apprised of the fact that plaintiff had purchased this land. * * *”

As conclusions of law, the court held: That at the time the memorandum agreement was signed, C. A. Carlson acted as trustee; that when John G. Chell accepted the deed from defendants Le Roy and Elsie Carlson he had “constructive notice of the prior sale to the plaintiff by virtue of the notice of Lis Pendens filed on August 17th, 1940.” And that “in addition thereto he had actual notice of such prior sale by virtue of his conversation with plaintiff.”

The court granted judgment “that the agreement set forth in the complaint and proven in this cause, be specifically performed and that the defendants John G. Chell and Emma Chell, his wife * * * execute and deliver to the plaintiff, Gust A. Saros, a good and sufficient conveyance in fee, with the usual covenants of warranty of the * * * described premises * * * that the plaintiff upon the delivery of said conveyance do pay to the defendants John G. Chell and Emma Chell his wife, or to their attorney Morris E. Yager, the sum of Two Hundred Fifty Five and No/100 Dollars ($255.00) the residue of the purchase money named in the contract set forth in the complaint, without interest, less, however, the sum of eighty five and 31/100 dollars, the damages, taxable costs and disbursements awarded plaintiff herein, and which is the amount of deduction and abatement to which the plaintiff is hereby adjudged to be entitled.”

Morris E. Yager, of Frederic, for appellants.

Nelton & McGinnis, of Balsam Lake, for respondent.

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