Dreutzer v. Lawrence

Taylor, J. No bill of exceptions was settled in the case, and the only question raised by the appellants upon this appeal is based upon the supposed insufficiency of the complaint. The appellants claim that it does not state a cause of action. We think the complaint states a cause of action in favor of the plaintiff. The deed from Lawrence and wife, which was imperfectly executed, as we may presume, by mistake and not fraudulently, was, in equity, a contract to convey the lands therein described to Mrs. Pinney, and she could demand the execution of the contract at any time. The consideration had all been paid, so far as the written contract, viz., the deed, shows; and there was nothing more for Mrs. Pinney to do except to demand a proper conveyance according to the contract. Had Mrs. Pinney brought the action, there could be no- doubt of her right to maintain the same upon the allegations of the complaint. That she could assign the right of action as a whole to á third person is equally clear, and that, after such assignment and a demand for the deed by the assignee, such assignee could maintain the same, is also equally clear. It is claimed, however, that she could not by her assignment divide the cause of action into two or more causes of action in favor of different assignees. If it be admitted that this could not be done, so as to enable each assignee to bring a separate action against Lawrence and his wife, to compel a conveyance, they cannot take advantage of that objection in this case. The objection is not that the plaintiff has no cause of action in his favor against the defendants, but that his cause of action is a joint cause of action, either with Mrs. Pinney, if she remains the owner of the remainder-of the lands agreed to be conveyed to her by Lawrence and wife, or, if she has assigned all her interest in the contract, then with her other assignees. The objection that there is a defect of parties plaintiff' can only be taken by answer or [598] demurrer, and there was neither in this case. Sec. 2654, R. S- 1878; Hall v. Gilbert, 31 Wis., 691-695; Robbins v. Deverill, 20 Wis., 142; Kimball v. Noyes, 17 Wis., 697; Carney v. La C. & M. R. R. Co., 15 Wis., 503. The complaint does not allege that Lawrence and wife fraudulently omitted to have their deed witnessed by two witnesses, or that they fraudulently omitted to seal the same, and, in the absence of any allegations of fraud in that respect, the court will presume that the omission was by mistake on the part of the grantors; or, if not a mistake, that they supposed the deed was properly executed so as to convey the legal title to the grantee named therein. The allegations of the complaint are sufficient to show that they intended to so execute the deed as to convey the title to their grantee, Mrs. Pinney, and by reason of a mistake in the manner of its execution it failed to accomplish their purpose. Rut the law says the instrument, executed as it was, is in equity a contract to convey the lands described therein, for the consideration expressed, to the person or persons named as grantee therein. Hanson v. Michelson, 19 Wis., 498. In the absence of any proofs to the contrary, the consideration expressed in such imperfect deed will be presumed to be the true consideration for the conveyance. The contract is clearly assignable, as said above, and the cases of Crocker v. Bellangee, 6 Wis., 645; M. & M. R'y Co. v. M. & W. R. R. Co., 20 Wis., 174, have no application. See Bennett v. Keehn, 57 Wis., 582. It is objected that Mrs. Lawrence is a married woman, and that a court of equity will not compel a married woman to perform her written contract for the conveyance of real estate. If it were admitted that a married woman, who has signed a written contract with her husband to convey the lands of the husband, will not be compelled by a court of equity to execute such contract so as to divest herself of her inchoate right of dower in such lands,— a proposition which [599] I do not think this court "has ever sustained, and which I do not subscribe to, — still, this judgment should be sustained, if necessary, upon the presumption that Mrs. Lawrence was n, joint owner with her husband of the lands in question, and consequently, under the statute which gives her full control of real estate which she owns in her own right, her contract in regard to such lands will be enforced at law and in equity as though she were unmarried. The allegation in the complaint is that “A. W. Lawrence and Enály J. Lawrence, his wife, were the owners of the lands,” etc. This language is sufficiently general to admit of proof on the trial that Mrs. Lawrence was a joint owner of the lands in question, and if necessary to support the judgment we must presume that such proof of ownership was made on the trial. It would seem, from the statement made by the learned counsel for the appellants, that such was the fact, as he states, on page II of his brief, “ that defendant Mrs. Lawrence is a married woman, and a joint owner with her husband of this land.” If she was such joint owner, then it is clear she could bind herself by a written contract to convey the same. We find no errors in the record. By the Court.— The judgment of the circuit court is affirmed.