Taft v. Reddy

• Citation: 210 N.W. 364,191 Wis. 144
• Parties: TAFT ET AL. v. REDDY ET AL.
• Decision Date: 12 October 1926
• Court: Wisconsin Supreme Court

191 Wis. 144

210 N.W. 364

TAFT ET AL.

v.REDDY ET AL.

Supreme Court of Wisconsin.

Oct. 12, 1926.

Appeal from Circuit Court, Walworth County; E. B. Belden, Judge.

Action by George E. Taft and others against George Reddy and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions.--[By Editorial Staff.]

Land contract. The plaintiffs were the owners in fee of certain lands described in plaintiffs' complaint. On the 18th day of September, 1919, George Reddy and I. J. Bower entered into a contract with the plaintiffs for the purchase of said premises at the agreed purchase price of $28,000, to be paid $1,000 in cash as of the date of the contract, $1,500 in cash March 1, 1920, the remainder of the purchase price, $25,500, in ten years, with annual interest at the rate of 5 per cent.; it being agreed that $100 or more might be paid on the purchase price on any interest date. The contract contained many other provisions and agreements which are not necessary to recite here.

On the 29th day of November, 1919, Reddy and Bower sold their interest under the contract to Charles F. Wollenzein for $2,500, and an assignment was made of the contract to Wollenzein, and Wollenzein agreed to assume and carry out all the terms and conditions of the contract entered into between the plaintiffs and Reddy and Bower on the 18th day of September, 1919. On the 6th day of March, 1922, the plaintiffs entered into a contract with Reddy, Bower, and Wollenzein; it appearing from the recitals that the payments had not been met in accordance with the terms of the contract, and that the vendees were in default, and that the whole amount of the purchase price had been declared due and payable. It was agreed that the vendees should pay $737.28, being one-half of the amount of interest accrued and unpaid up to the 1st day of March, 1922, together with insurance and other charges against the lands, the remaining $737.28 to be paid as of the date of the supplemental contract, March 6, 1922. There was some modification of the conditions contained in the contract of September 18, 1919, which are not material to a determination of the issue presented here. The vendees having failed to perform the contract as modified, the plaintiffs elected to declare the whole amount due under the contract, and began this action. All of the facts were fully set out. Plaintiffs alleged that they were ready to perform upon the payment to them of the amount agreed to be paid, brought into court a warranty deed properly executed and stamped, conveying the premises to the vendees, alleged that they were seized of a good, indefeasible estate of inheritance in fee of the lands, that the same were clear of all defects, incumbrances, and claims except those arising under the contract to the vendees. Gertrude Reddy, the wife of George Reddy, Ethel Pearl Bower, the wife of I. J. Bower, and Martha C. Wollenzein, the wife of Charles F. Wollenzein, were made parties. H. G. Wheeler, Harry Wheeler, and Gerhard Ganzer were also made parties; it being alleged that they had, or claimed to have, some interest in the premises subject to and under the contracts hereinbefore referred to.

The contract of September 18, 1919, required the vendees to keep the buildings upon the premises insured; that possession of the premises should be given under the contract on March 1, 1920; contained clauses as to the repair and replacement of buildings if the same should be destroyed by fire; that, in the event of the foreclosure of the contract, the vendee should pay a reasonable sum as solicitor's fees. The contract, however, contained no forfeiture clause such as is frequently found in land contracts, by the terms of which all payments made by the vendee might be declared forfeited, and that thereafter the vendee should hold as a tenant at sufferance of the vendors.

Plaintiffs prayed for judgment as follows: That the entire principal sum of $25,500 be declared due and payable with interest from the 1st day of September, 1922; that the plaintiffs recover from Reddy, Bower, and Wollenzein the sums of $14.30 and $7.80 paid for insurance, the sum of $247.50 due for unpaid taxes; that the defendants receive a deed from the plaintiffs pursuant to said agreements; that the court, on the failure to pay the purchase price by the defendants to the plaintiffs within a reasonable time to be fixed by the court, direct a sale of the lands to pay said purchase price and interest thereon and to pay the taxes unpaid and insurance paid by the plaintiffs; that the plaintiffs have judgment and execution for any deficiency after applying the proceeds of any such sales to said payments against George Reddy, I. J. Bower, and Charles F. Wollenzein, who are personally liable for payments; and that the plaintiffs have such other or further judgment, order, or relief as may be just and equitable.

The answer consisted principally of denials and admissions, and alleges that the court was “without authority in this form of action to grant relief other than to foreclose the defendants of all right, title, and interest in the premises described in the complaint, unless the sums presently due according to the terms of the contract are paid within a reasonable time, which time should be fixed by the court”; alleges that a sale of the premises was improper, that the defendants were willing to release their equity; offered, upon being released from the obligation of the contract, to forfeit the $2,500 payments already made; and asked judgment releasing the vendees from the obligation of the contract, and that their interest in the premises be forfeited and foreclosed.

There was a trial, and upon the trial the court found in favor of the plaintiffs; that there remained due the sum of $25,500, with interest at 5 per cent. from the 1st day of March, 1923, the sum of $22.10 insurance paid by the plaintiffs; that $400 was a reasonable solicitor's fee. Upon the findings the court ordered “that said original agreement as modified be specifically performed; that the plaintiffs, on or before the 1st day of June, 1925, execute and deliver to the clerk of the circuit court for Walworth county, Wis., a warranty deed, duly executed by themselves and Margaret E. Taft, wife of said George E. Taft, of an undivided one-half interest in and to the real estate above described” to the defendants Reddy and Bower; that a like deed be executed by the plaintiffs and Margaret E. Taft, wife of George E. Taft, to Charles F. Wollenzein, each of the deeds to contain the usual covenants of seizin and warranty; “that within thirty days after notice of entry of judgment * * * said defendants George Reddy and I. J. Bower pay to the clerk of said court one-half of the...