Zunker v. Kuehn

• Decision Date: 07 January 1902
• Citation: 113 Wis. 421,88 N.W. 605
• Parties: ZUNKER v. KUEHN ET UX.
• Court: Wisconsin Supreme Court

113 Wis. 421

88 N.W. 605

ZUNKER

v.KUEHN ET UX.

Supreme Court of Wisconsin.

Jan. 7, 1902.

Appeal from circuit court, Milwaukee county; Eugene S. Elliott, Judge.

Action by William L. Zunker against Martin L. Kuehn and his wife. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

In March, 1899, the plaintiff was the owner of certain lands in Waukesha county, and the defendants of a tract in the city of Milwaukee. An exchange was proposed. The defendant Martin L. Kuehn pointed out to plaintiff the tract he owned. which was inclosed by a fence, and having a street frontage of 110 feet. The exchange was agreed upon, each to give the other a good record title of the land owned by him, and deeds were executed. The defendants' deed covered a strip only 99 feet wide, but plaintiff was put into possession of the entire tract. A few months afterwards plaintiff discovered that he had title to but 99 feet, and so brought this action for a rescission of the transaction, alleging fraud and deception on the part of defendants. The answer admitted the execution and delivery of the conveyances mentioned, alleged that defendants were the owners in fee simple of the entire tract pointed out, and a readiness to make any additional deeds necessary to carry out the agreement, and denied fraud or deception. The court found the facts substantially as stated, and, in addition, that defendants had no title of record except to the 99 feet; that both parties supposed they had title to the whole 110 feet inclosed in the fences and pointed out to plaintiff, and that defendants supposed they were giving title to the whole when their deed was executed, and plaintiff supposed he was getting such title. The evidence showed that the defendant Martin and his father had been in the exclusive possession of the 110-foot tract for 30 or 35 years, and had inclosed the same with a substantial fence. The court refused to find that defendants had title by adverse possession, but did find that defendants had no title of record to the strip 11 feet wide, and that the title which defendants had was not such title as they agreed to give to plaintiff. The court further found that plaintiff had tendered a reconveyance of the land and demanded a rescission of the transaction. The court's legal conclusions were that the mutual mistake of the parties as to the premises and the title thereto owned by the defendants operated in fraud of the rights of plaintiff, and entitled him to a rescission of the transaction. Exceptions were duly filed, and defendants appeal from a judgment entered in accordance with the findings.McElroy & Eschweiler, for appellants.

N. B. Neelen and C. E. Estabrook (F. W. Houghton, of counsel), for respondent.

BARDEEN, J. (after stating the facts).

The court found the parties agreed to an exchange of lands, and that each was to give the other a good record title to the tract he was to convey. The defendants claimed to own a tract with a street frontage of 110 feet. The deed given plaintiff only covered a strip 99 feet wide. The defendants had no record title to any more land than they conveyed, and were therefore unable to comply with their agreement. This fact operated as a legal fraud upon plaintiff, and was held sufficient to entitle him to a rescission of the transaction. No serious controversy arises over the facts. It is not claimed that defendants had any record title to the strip 11 feet in width which was not included in their deed. They insist, however, that they had title by adverse possession, and, having offered to convey, no rescission should be decreed. While the evidence is not perfectly clear and satisfactory, it may be admitted that defendants showed adverse possession of over 20 years. This was not a title of record. It depended upon questions of fact, and could only be established by a resort to parol evidence. Nothing that could be adjudicated in this action would be binding upon the holder of the record title. If plaintiff was to accept a deed from defendants, he might still be obliged to litigate with the holders of the record title the question of title as against them. This court cannot anticipate what the defendants or the owners of the record title may be able to prove in such a contest. The latter may be able to prove facts tending to show that what appeared to be adverse possession in a litigation in which he was not heard is quite otherwise. Such possession may be shown to have been permissive, or not continuous, or the attacking party may be one against whom the statute has not run. The situation in such cases is so uncertain, and the inability to make a binding adjudication so apparent, that courts uniformly refuse to compel grantees to accept title where resort to parol evidence is necessary to establish it, or where there is...