Wetzler v. Duffy

Taylob, J. After a careful reading of the testimony, we think it very clear that the findings of fact are fully sustained by the evidence, and the conclusions of law and the judgment thereon in favor of the plaintiff are clearly right. The learned counsel for the defendant contends that the judgment is erroneous because it clearly appears from the [173] findings and tbe evidence tbat, before the commencement of this action and before a perfect deed had been given by the plaintiff to the defendant for the real estate in dispute, the building situate thereon had been burned; and so the plaintiff could not make a perfect title to the premises sold to the defendant, the house burned being a very material part of the lot sold. He argues that when a party Agrees to convey real estate to another for a fixed price, and when a considerable portion of such price is paid for the buildings situate thereon, and such buildings are destroyed by fire without the fault of the purchaser before the title is conveyed to him, he may refuse to take a conveyance, and recover the purchase money already paid; and to this proposition he cites Thompson v. Gould, 20 Pick. 134, and Wells v. Calnan, 107 Mass. 514. We think this case is clearly distinguishable from the cases cited. In those cases the buildings on the premises were destroyed before the time for making the deed had arrived, and it does not appear in the case last cited that the purchaser had taken possession under his contract. In the case at bar, the contract was a sale to be paid for on delivery of a deed, and the deed was to be delivered,immediately. A deed was delivered which was supposed to convey the land to the defendant, and she took actual possession as owner thereof, gave back a mortgage to secure part of the purchase money, the other part having been paid in cash. ' We think it very clear that, when this imperfect deed was given, the purchase price paid, and possession taken of the property intended to be conveyed by the defendant, the whole equitable title, at least, to the land vested in the defendant; and while such equitable title was vested in the defendant the house was destroyed by fire. Upon its destruction the defendant did not seek to avoid her contract, but rebuilt on the lot, and continued .in the actual possession of the same up to the time of the com [174] mencement of this action. Under such a state of facts, we think the defendant must be considered the owner of the premises at the time of the fire, and the loss must fall on her. Whether we would feel bound to follow the decisions of the court of Massachusetts, had the defendant been in possession of the lot under a contract for a deed to be executed at some future time, and before that time had arrived the house had been destroyed by fire without the fault of either party, need not be determined in this case. Eor all practical purposes the defendant was the owner of the house and lot when the fire occurred, and the Massachusetts cases place their decision upon the ground that the actual owner must stand the loss. In addition to this, when the court by its judgment corrected the deed the legal estate became vested in the defendant from the time of the execution and delivery of the deed. The learned counsel for the appellant urges another point as error, viz.: That the court did not make any findings upon his counterclaim for damages for a breach of contract on the part of plaintiff to transfer to her the policy of insurance he held upon the building at the time the same was burned. We have looked into the testimony which bears upon that question, and think it is entirely insufficient to sustain a finding thereon in favor of the defendant. But the counsel for the defendant insists that, if it be admitted that the evidence is insufficient to sustain a finding in favor of the plaintiff, still it was error for the court not to make a finding on the question. The exceptions of the defendant are not sufficient to raise that question in this court. The record does not show that he called the attention of the court to the matter, or that he asked the court to make a finding on that point. All he did was to except to the findings because there was no finding on that question. These exceptions are not made in court, and probably never [175] came to the knowledge of the court until he was asked to sign the bill of exceptions in the case. The rule was established in this court in Wilkinson v. Wilkinson, 59 Wis. 557, 560; Barry v. Schmidt, 57 Wis. 172; Wrigglesworth v. Wrig-glesworth, 45 Wis. 255-257; Mead v. Chippewa Co. 41 Wis. 205; Williams v. Stevens Point L. Co. 72 Wis. 487,— that if a party to an action desires any particular finding of fact he must call the attention of the court to the matter of fact upon which he desires a separate finding; otherwise, he cannot avail himself of the neglect of the court to make such finding. This rule is only applicable to a case where the testimony sustains the findings made by the court, and there is not sufficient evidence in the case to require, as a matter of law, a finding different from those found by the court upon some other material matter. In this case, the court having omitted to find for either party on the counterclaim made by the defendant in her answer, and the evidence being of such a character as would have clearly justified the court in finding against such counterclaim, we must infer, from his omission to make a special finding on that point, that he found against the defendant’s claim. We think the case was fairly tried, and that the judgment is right. By the Court.— The judgment of the circuit court is affirmed.