Stack v. Hickey

• Citation: 138 N.W. 1011,151 Wis. 347
• Parties: STACK v. HICKEY ET AL.
• Decision Date: 10 December 1912
• Court: United States State Supreme Court of Wisconsin

151 Wis. 347

138 N.W. 1011

STACK

v.HICKEY ET AL.

Supreme Court of Wisconsin.

Dec. 10, 1912.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Stephen S. Stack against Thomas J. Hickey and others. Judgment for plaintiff, and he appeals. Affirmed.

This is an appeal from part of a judgment in an action for specific performance of a land contract. Judgment was entered for the appellant for specific performance, but imposed upon him certain terms and conditions named in the findings and judgment. By the terms of the contract, the respondents were to convey certain lands to the appellant, in consideration of which the appellant agreed to pay respondents $11,500 and transfer to them, free and clear from incumbrances, except the right to dig and maintain a tunnel under the surface of a part of the grounds, a good title by warranty deed, and furnish abstract of title to certain lands in the city of Milwaukee, which included lots 8 and 9, in block 1, in Carl Buschardt's subdivision, being a subdivision of lot No. 3.

The controversy in the case arises out of whether or not a good title to these lots was tendered before the commencement of this action, and, if not, whether the accounting was correct. The lots in question were incumbered with two mortgages, the first known as the Walz mortgage, and the other, or second mortgage, known as the Draves mortgage. The question of whether the title was a good title, within the meaning of the contract, results from the foreclosure of these mortgages.

One Sivyer held a sheriff's deed upon the foreclosure of the second mortgage, which was recorded and showed title in him to said lots 8 and 9 when this action was commenced. Upon production on the trial of a deed from Sivyer to respondents, specific performance was adjudged on the terms set forth in the findings. The court below held the Sivyer deed a cloud upon the title, and that respondents were entitled to interest on the $11,500, and on accounting the court concluded: “* * * That the defendant is entitled to receive from said plaintiff said item of interest, namely, seven hundred sixty-sixdollars and sixty-six cents ($766.66), said item of rent received by said plaintiff, namely, seven hundred twelve dollars ($712), said item of taxes paid by the defendants on said farm property, namely, the sum of one hundred eighteen dollars and ninety cents ($118.90), said item of insurance paid by said defendants, namely, the sum of six dollars and sixteen cents ($6.16), said item of repairs by said defendants, namely, the sum of eight dollars and seven cents ($8.07), or a total of one thousand six hundred eleven dollars and seventy-nine cents ($1,611.79), together with the costs and disbursements of this action and an abstract of plaintiff's property brought down to date, free of expense to said defendants. That the plaintiff is entitled to an offset against the said sum of one thousand six hundred eleven dollars and seventy-nine cents ($1,611.79) and the costs and disbursements of this action for said item of taxes paid by the plaintiff, namely, the sum of one hundred twenty-eight dollars and eighty cents ($128.80), the said item of rent received by the defendants for said farm property, namely, the sum of two hundred seventy-five dollars ($275), the said item of insurance paid by the plaintiff, namely, the sum of seventeen dollars and forty-two cents ($17.42), the said item of repairs paid by the plaintiff, namely, the sum of eighty-three dollars and forty-five cents ($83.45), or a total of five hundred four dollars and sixty-seven cents ($504.67), together with the sum of one hundred twenty-five dollars ($125) damages, as found in the fifteenth finding of fact, or a total of six hundred twenty-nine dollars and sixty-seven cents ($629.67). That said plaintiff is also entitled to receive from said defendants an abstract of said farm property, brought down to date, free of expense. * * *”

O'Connor, Schmitz & Wild, of Milwaukee, for appellant.

William E. Burke, of Milwaukee, for respondents.

KERWIN, J. (after stating the facts as above).

[1][2] But two questions are involved upon this appeal: (1) Whether there was a cloud upon the title to lots 8 and 9 in question, such as to render it unmarketable under the agreement to convey a good title, and (2) whether the accounting was proper.

1. The contention of the appellant is that the foreclosure of the Walz or first mortgage cuts off all rights of the mortgagee Draves in the lots under the second mortgage, and that, the title acquired under the first...