Topping v. Parish

• Decision Date: 21 May 1897
• Citation: 96 Wis. 378,71 N.W. 367
• Parties: TOPPING v. PARISH ET AL.
• Court: Wisconsin Supreme Court

96 Wis. 378

71 N.W. 367

TOPPING

v.PARISH ET AL.

Supreme Court of Wisconsin.

May 21, 1897.

Appeal from circuit court, Waupaca county; Charles M. Webb, Judge.

Action by Earnestine Topping against David Parish and another to rescind a conveyance. Judgment for defendants, and plaintiff appeals. Affirmed.

This action was brought to rescind the sale and conveyance of a farm made by John Sipes, in his lifetime, and Martha J. Sipes, July 19, 1894, to the plaintiff, for $2,200. Of this sum, $1,788 was secured by two notes and a mortgage on the same premises, and the remaining sum of $412 was paid by a transfer to the vendors of a note and mortgage against other parties and premises, upon which that sum was actually due. The vendors at the time conveyed the premises sold to the plaintiff by warranty deed, inserting therein an agreement that they would deliver possession of said premises to the plaintiff on the 1st day of April, 1895, and it was alleged that they had failed and neglected, and still refused, to do so; that, at the time of the delivery of the deed, one Alvina Decker was seised of said premises, lawfully claiming the same by virtue of a lease from the vendors, and that after the delivery of the deed to the plaintiff the said vendors renewed said lease, or rented or leased said premises again to the said Alvina Decker, for the period of one year; and that she was then in possession thereof under said lease, and refused to deliver said premises to the plaintiff. On the 1st of April, 1895, the plaintiff, by her agent, went to the defendant, Martha J. Sipes, for the purpose of demanding the return of said notes and mortgages, but she refused to return the same, although she had possession thereof, or to do anything about it. The defendant John Sipes died on the 4th of April, 1895, and David Parish, appointed his administrator, had qualified and was acting as such. It was further alleged that the defendant Martha J. Sipes was insolvent, and that a judgment against her would not be collectible in proceedings at law; that she threatens to dispose of and sell said notes and mortgages, and that she would do so unless enjoined by the court; that the plaintiff had not conveyed or incumbered said premises, but had been willing and ready at all times, and still was, to reconvey said premises to the said John Sipes, or to said David Parish, as such administrator, or to such person as the court might determine, for the benefit of the estate of John Sipes, deceased. Judgment was demanded against the defendants for $2,200, with interest from July 19, 1894, or that the said defendant, Martha J. Sipes, be compelled, by an order or judgment of the court, to deliver to the plaintiff said notes and mortgages given for the purchase of said land, and that the defendants, their and each of their agents, etc., be enjoined until the further order of the court from selling, disposing of, concealing, or transferring or removing said notes and mortgages out of the jurisdiction of the court, and for such other judgment, order, or relief as to the court might seem just and equitable. A temporary injunction was granted as prayed for. The defendants having answered the complaint, the cause came on for trial, when the counsel for the defendants objected, for each defendant separately, to the introduction of any evidence under the complaint, for the reason that the same did not state facts sufficient to constitute a cause of action, and that the court was without jurisdiction. The court sustained the demurrer, and adjudged that the complaint be dismissed, with costs, from which judgment the plaintiff appealed.Churchill & Sanborn, for appellant.

S. A. Connell, for respondents.

PINNEY, J. (after stating the facts).

It may be inferred, perhaps, from the facts above stated and contained in the complaint, although not expressly so alleged, that the deed to the plaintiff contained a covenant that the...