Smith v. Hughes

• Decision Date: 17 December 1880
• Citation: 50 Wis. 620,7 N.W. 653
• Parties: SMITH AND ANOTHER v. HUGHES.
• Court: Wisconsin Supreme Court

50 Wis. 620

7 N.W. 653

SMITH AND ANOTHER

v.HUGHES.

Supreme Court of Wisconsin.

Filed December 17, 1880.

Appeal from Winnebago circuit court.

Geo. W. Burnell, for respondents.

C. D. Cleveland, for appellant.

ORTON, J.

The counter claims of the defendant for a rescission of the bargain, and for damages, are predicated upon the breach of the covenant of seizin in the deed of the respondents, executed and delivered in July, 1872. It is too well settled that only executory contracts can be rescinded, to requirediscussion. This method of relief is the converse of specific perform ance, and in its very nature can have application only to executory contracts, and this court has settled the question beyond controversy, by repeated decisions. In direct application to this case it is held in Booth v. Ryan, 31 Wis. 45, that especially a rescission cannot be made after a deed with full covenants, together with possession, have been delivered in full execution of the contract of sale. It is not pretended in this case that the vendors were guilty of any fraud or concealment, or that the warrantors were insolvent, or that the appellant did not have full knowledge of the condition of the property and title. Willard's Eq. Jur. 303; Taft v. Kessel, 16 Wis. 273;Horton v. Arnold, 18 Wis. 212;Brunette v. Schettler, 21 Wis. 188; Rawle on Covenants, 565, 591.

The remark in the opinion of Chief Justice Dixon in Mecklem v. Blake, 22 Wis. 495, intimating that a rescission might be made in such a case, was clearly obiter, and without due consideration. As to the counter claim for damages for the breach of the covenant of seizin, the law is equally well settled that an action to recover anything more than nominal damages for the breach of this covenant will not lie until after eviction by paramount title, or other actual injury. Mecklem v. Blake, 22 Wis. 495;Noonan v. Ilsley, 22 Wis. 27;Eaton v. Lyman, 30 Wis. 41. From the evidence in the case, there can be no question but that the adverse possession of the appellant, and those holding under him, ripened into title before the answer setting up the counter claim in this action was made. This affirmative relief asked, by way of answer, must be treated as a cause of action, and before this cause of action accrued the title of the appellant became perfect, and his previous cause of complaint had been removed. The lots had been used together in the business of the respondents before the deed was made, and they had full and notorious possession of both lots, and delivered the same to the appellant at the time of the execution of the deed. Since that time the evidence is very clear and satisfactory that the appellant, and those claiming under him, have continued in nearly the same use and possession of, and exercised nearly the same acts of ownership over, both of the lots. They have paid the taxes thereon, and derived rents and profits therefrom, and to the extent necessary for their business they have been in the visible, open, and notorious possession of both lots to the extent of their relative facilities of use and enjoyment, and to the exclusion of all other persons. The appellant has offered to rescind the bargain, and although, as we have seen, this offer is fruitless in such a case, yet it is sufficient that he has made this offer to rescind in good faith, and tendered or pretended to tender back to the respondents all of the title and possession he received from them in 1872.

By this answer the appellant should be estopped from claiming, in this case, that he had lost or abandoned such possession, and rendered himself unable to deliver back the same to the respondents on such rescission. In this view of the case it is not necessary to scan very closely the...