Forcy v. Leonard

Taylor, J. An exception was taken by tbe defendant to tbe finding of fact “ that on tbe date of tbe deed from Worick to James T. Leonard there was unpaid upon the contract between Worick and the defendant tbe sum of $2,800, and interest at ten per cent, from tbe date thereof.” It is probable that this was a mistake, but it cannot prejudice tbe defendant, as tbe court has not figured the amount due to the plaintiff from the defendant upon that contract. It is evident, from tbe sum tbe court has charged to tbe defendant as tbe amount be should equitably pay in order to entitle himself to a conveyance of tbe land, that be has not proceeded upon tbe basis of tbe contract made with Worick, but upon a consideration of all tbe admissions [359] made in original and amended complaints. He considered the plaintiff equitably entitled to the $2,000 he paid'Worick for the land, with interest thereon at the rate of seven per cent, from the date of his deed, deducting therefrom the $400 admitted to have been paid to him after that date; so that this erroneous finding of fact, if it be one, cannot prejudice the defendant, as the final judgment was not based upon it. The learned counsel for the appellant insists that the judgment should be reversed, because none of the material allegations of the amended complaint, all of which were denied by the answer, were proved upon the trial. Had the defendant contented bimself with his second separate answer to the amended complaint, in which he denied all the material allegations set out therein, it would have been difficult to understand how a judgment could have been rendered in favor of the plaintiff upon the proofs offered. But the defendant’s first answer to the amended complaint, being the same amended answer made to the original complaint, contains, we think, admissions which justified the court in entering the judgment it did. That answer admits the title of Worick, admits that the defendant entered into the possession of the premises under Worick by virtue of a written-agreement with Worick to purchase the same, and that the possession so taken 'under Worick has continued down to the present time. He admits, by not alleging such payment, that he did not pay the purchase money due on the contract with Worick. He also admits the subsequent purchase of the lands by the plaintiff from Worick for a consideration paid by the plaintiff of $2,000. Upon these admissions it is clear that the defendant has no right to retain the possession of the premises, as against the plaintiffs, without either the payment of the original contract price as agreed upon between him and Worick, or the payment [360] of the $2,000 paid by the plaintiff to Worick as the purchase price of the land. The learned circuit judge evidently came to the conclusion that the $2,000 paid by the plaintiff for the land was what, in equity, the defendant ought to pay, and so found. It is true, the defendant, in his amended answer referred to, endeavors to avoid the effect of his admission of possession under the contract with Worick, by asserting that such possession was adverse to Worick. Such assertion, however, can have no weight against the facts admitted. The facts admitted show that his possession was not adverse to the title of Worick and those claiming under him, and his assertion to the contrary cannot make it so. Suppose he had admitted that he took possession of the premises under a written lease from Worick stipulating for the payment oí-an annual rent as tenant of Worick, would Ms assertion that such possession was adverse to Worick have any weight in qualifying the admission that he was such tenant ? Certainly not. The facts stated in the amended complaint, and the admissions of the answers to such complaint, together with the proof of the deed from Worick to plaintiff and the contract between Worick and the defendant, are sufficient to support the judgment entered in the case. The only objection to it is that it does not direct the payment of a larger sum by the defendant to entitle him to a deed of the premises. That defect in the judgment is not prejudicial to him, and it is therefore no reason for its reversal on his appeal. Sec. 2886, B. S. 1818, reads as follows: “The relief granted to the plaintiff, if there be no answer, cannot exceed that wMch he shall have demanded in his complaint; but in any other case the court may grant Mm any relief consistent with the case made by the complaint and embraced witMn the issue.” [361] The relief granted in the case at bar was consistent with the case made by the complaint. The case made by the complaint showed that the plaintiff was entitled to a strict foreclosure of the defendant’s rights and interest in the land, and that was the relief granted by the court. It is true, the relief was not granted upon the facts stated in the amended complaint, but it was granted upon the facts proved, and other facts admitted by the answer of the defendant, which the plaintiff had the right to avail himself of, as evidence showing himself entitled to the relief he obtained from the court. There could certainly be no objection to amending the complaint so as to make it state the case as admitted by the defendant’s answer and ask relief consistent with the case so stated. In the case- at bar the court granted the relief upon such a state of facts, without directing the complaint to be amended. In such case the want of an amendment of the complaint is no ground for reversing the judgment; for the purpose of sustaining the judgment it will be deemed amended. The following cases support the practice in the case at bar: Leonard v. Rogan, 20 Wis. 540; Strœbe v. Fehl, 22 Wis. 331; Hopkins v. Gilman, 22 Wis. 476; Brook v. Chappell, 34 Wis. 405, 410; Sage v. McLaughlin, 34 Wis. 550, 557; Amory v. Amory, 26 Wis. 152, 161; Emery v. Pease, 20 N. Y. 62, 64; Boyd v. Dowie, 65 Barb. 241; Getty v. Spaulding, 1 Hun, 115; Hier v. Staples, 51 N. Y. 136. We do not think the record discloses any error for which the judgment should be reversed. By the Court.— The judgment of the circuit court is affirmed.