Hyslip v. French

Cassoday, J. The contract, which rested in parol when the first lot of lumber was taken from the lands, must be regarded as having been reduced to writing when the note and receipt were delivered. By the note the plaintiff agreed absolutely to pay the amount named; and by the receipt the defendant, as administrator, promised that such payment should be in full of the purchase money of the lands, and that a deed of the same would be made to the plaintiff or his assigns as soon as leave therefor could be obtained from the probate court. It is apparent from the writing, as well as the evidence, that the plaintiff, as well as the defendant, understood the title to be in the heirs of the intestate, and not in the defendant. The note was given and the money paid, therefore, with the full understanding that the plaintiff would get title, not from the defendant, but from the heirs through the probate court. Clearly there was no mistake of fact, nor any fraud or false pretense on the part of the defendant. It is equally clear that the note was not without consideration. The plaintiff, knowing all the facts, took the lumber from the lands, gave the note and caused it to be paid, and now seeks to recover back the money so paid, not on the ground of deception, fraud or mistake, but because he did not get all he bargained for, notwithstanding he has obtained, and proposes to retain, the most valuable part of it. The cases cited by counsel do not seem to be applicable to the undisputed facts of this case as above stated. The most that can be here claimed by the appellant is a partial failure of consideration. In Bumpus v. Platner, 1 Johns. Ch., 213, Chancellor Kent uses this language: “It is said to be very difficult to extract from the books what the rule of equity is upon this point of [516] failure of consideration after the agreement is executed; bul, I apprehend, it may be safely said that there is no case of relief on this ground when possession has passed and continued without any eviction at law under a paramount title.” Page 218. This case is in harmony with the late case of Parkinson v. Sherman, 74 N. Y., 92. In Joyce v. Ryan, 4 Greenl., 101, it was held that, “if the lands of a deceased person, which have been sold under license for the payment of his debts, are taken from the purchaser by an elder and better title, he cannot maintain an action of as-sumpsit for the consideration money, but must resort only to such covenants as are contained in his deed.” To the same effect is Emerson v. Washington, 9 Greenl., 88. In Soper v. Stevens, 14 Me., 133, it was held that, “ where a note, given as the consideration of a quitclaim deed of land, and where there was no fraud, has been paid by the grantee, the money cannot be recovered back, although such grantee has been evicted by an older and better title.” In Gates v. Winslow, 1 Mass., 66, the court used this language: “Where money has been voluntarily and understandingly paid, upon a contract made iona fide, without fraud, imposition or deceit, although it was paid without consideration, the law will not compel a repayment, but leaves the parties as it finds them.” In Earle v. DeWitt, 6 Allen, 520, the defendant purchased the land from the assignee of an insolvent debtor, and conveyed to the plaintiff by quitclaim deed, with covenants against his own acts, when the plaintiff in fact had no title by reason of a want of jurisdiction in the judge of insolvency; and it was held that the plaintiff could not maintain an action to recover back the money paid by him as the consideration of the deed, as both parties had acted under the belief that the deed conveyed a good title. In the case here presented, the plaintiff seeks to affirm the contract so far as to retain possession of the lands and the [517] avails of the lumber he has taken from the land, and disaffirm it so far as to get back all the purchase money he has paid. But this court has frequently held the contrary doctrine, even in cases where there was mistake of fact or fraud. Hendricks v. Goodrich, 15 Wis., 679; Grant v. Law, 29 Wis., 99. Ve are clearly of the opinion that the plaintiff has mistaken his remedy. If the defendant was authorized to act as agent of the Turner heirs, or if they, having power to bind themselves, had the benefit of the contract, it may be that a bill for specific performance is the proper remedy; or it may be that, in case of a proper demand and refusal to convey, an action for damages can be maintained. But we express no opinion on either of these questions, as the case may come before us in some other form. By the Court.— The judgment of the circuit court'is affirmed.