Nelson v. Jacobs

Cassoday, C. J. The complaint demanded judgment that the defendants perform the agreement to purchase the land, and pay to the plaintiffs the remainder of the purchase price, with interest from October -22, 1895; in other ivords, the ■action was for a strict foreclosure of the contract. The judgment entered is, in effect, for the foreclosure of the contract, a sale and conveyance of the land, a confirmation thereof, a disposition of the surplus moneys arising on the sale, if any, and, in case of a deficiency, that judgment be entered against the 'defendant William H. Jacobs, who is legally liable to pay the same. We agree with the counsel for the appellant that it was error to enter judgment in that form. The adjudications of this court are to that effect. Button v. Schroyer, 5 Wis. 598; Baker v. Beach, 15 Wis. 99; Landon v. Burke, 36 Wis. 378; Church v. Smith, 39 Wis. 492; Superior Consolidated Land Co. v. Nichols, 81 Wis. 656. Such objection to the form of the judgment is, at most, a mere irregularity. It did not deprive the court of jurisdiction to enter the judgment. Its entry was in violation of no statute. Strict foreclosure is not the vendor’s only remedy in such cases. First Nat. Bank v. Agnew, 45 Wis. 131. The question recurs whether the appellant’s conduct ivas such as to waive the irregularity. It appears that the cause came on for trial at the September term of the court for 1896, to wit, October 6, 1896; that the appellant was not able to submit to an examination at that time; that it was ■then stipulated in open court that the trial should proceed, and that the deposition of the appellant might be taken at — 556 — any time on three days’ notice; that such notice was then waived by the plaintiffs, and it was consented that such deposition be taken before an officer named, October 16, 1896;. that, upon the cause being tried October 6, 1896, the trial judge took the cause under advisement, in order that the appellant’s.deposition so to be taken should be put in evidence;, that the same was so put in evidence; that November 17, 1896, and after the final adjournment of said term, the trial judge, in pursuance of such stipulation, made and filed his findings, with a direction that judgment be entered thereon as of October 6, 1896; that November 25, 1896, judgment was entered thereon as of October 6, 1896; that November 27, 1896, notice thereof was given to the appellant; that no objection was made to such findings or judgment until December 1, 1896, when the appellant filed exceptions on the ground that the findings authorized a judgment otherwise than by a strict foreclosure; that thereupon the plaintiffs obtained an order to show cause why the judgment so entered should not be amended and modified so as to provide for a strict foreclosure of the contract instead of the provision therein contained for a foreclosure and sale of the premises, and for a judgment for deficiency against the appellant, and why said judgment should not be modified in other respects, and conform to such amendment, and the same came on to be heard at the December term of the court, and, the appellant appearing by his counsel, and objecting to the same on the ground that the court was without power to so amend or modify after the term at which the findings and judgment had been so entered and passed; and the court accordingly denied such motion, with $10 costs, December 17,1896. It is manifest from such conduct of the appellant that he was more anxious to have delay than he was to have the judgment in the form of a strict foreclosure, otherwise he would have consented to such modification. Since the findings and judgment were entered after the September term — 557 — upon the stipulation of the parties, it is quite obvious that they might have been amended after that term by like consent of the parties. The refusal of the appellant to so consent is evidence that he preferred to have the'judgment remain as it was, rather than to lose the opportunity of postponing the day of payment upon a mere technicality. The objection was purely technical. To allow it to prevail after the appellant had thus refused to consent to the correction would be to sacrifice the substantial rights of one party in order to stimulate the perversity and desire for further litigation by the other party. Certainly that should not be done in an equitable action like this. Such refusal to consent to such correction, when the same- might have been readily done without delay and -without expense, did not place the appellant in a favorable position to successfully invoke the aid of a court of equity to compel such correction after forcing the opposite party to submit to nearly two years’ delay, and be to a considerable expense. This position is the counterpart of the well-settled rule which precludes a party from availing himself of an error which he might have had corrected had he called the attention of the trial court to the same at the proper time. Besides, the appellant having conveyed certain portions of the premises, as indicated in the statement, it may be unjust to have his •grantees cut off by strict foreclosure, or compelled to pay more than they had agreed, when they, or some of them, may be relieved by reason of the judgment being in its present form. ¥e must hold that the appellant has, by his conduct, precluded himself from making such objection available. Error is assigned because the judgment requires the payment of interest from October 22,1895, instead of from January 25, 1896; in other words, that the action was prematurely brought. This is based upon the assumption that the plaintiffs did not perfect their title to the whole of the land until they obtained and recorded the corrected Oady deed to the fifteen acres, December 16,1895, and hence that the cash — 558 — payment did not become due until forty days thereafter, to wit, January 25,1896. This admits, by implication, that the plaintiffs had a perfect title to all the land except the fifteen acres at the time the deeds were tendered, September 12* 1895. Upon the record before us it is manifest that the plaintiffs did then have a clear and indefeasible title to all the land covered by the mortgage; that is to say, all, unless-the fifteen acres are to be excluded. The question recurs whether the appellant was justified in refusing the deeds tendered September 12,1895, by reason of any alleged interest of the widow and heirs of Cady in the fifteen acres. Undoubtedly he had the right to insist upon a marketable-title. It appears that the fifteen acres were not covei’ed by the sheriff’s deed recorded December 17, 1859. Nevertheless it was found by the court, as stated, that William Nelson and the plaintiffs claiming under him had continued in the actual, open, notorious, and exclusive possession, including the fifteen acres, ever since December 17, 1859; that soon after that date, William Nelson, so in possession of such land, protected the same by substantial inclosures, and he and the plaintiffs had occupied and used the same for agricultural purposes, and had been in such open, notorious*, and exclusive possession of the same for more than twenty years prior to July 10, 1895, claiming title thereto, and paying all taxes assessed thereon, and that none of the Cadys ever made any claim to the land, or any part thereof. There is no pretense that William Nelson so entered into possession of the fifteen acres in 1859 under Cady, or any grantor of Cady; but, on the contrary, it is found that such possession was adverse. There is plenty of evidence to support such findings. Had the widow and heirs of Cady brought an action to recover the fifteen acres on September 12,1895* they would necessarily have been met by the statute, which declares that “no action for the recovery of real property or the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, — 559 — was seized or possessed of tbe premises in .question, within-twenty years before tbe commencement of such action.” E. S. 1878, sec. 4207. After twenty years of peaceable and uninterrupted adverse possession a grant will be presumed. Rooker v. Perkins, 14 Wis. 79; Scheuber v. Held, 47 Wis. 340; Bartlett v. Secor, 56 Wis. 520; Toomey v. Kay, 62 Wis. 106;. Carmody v. Mulrooney, 87 Wis. 552; Lampman v. Van Alstyne, 94 Wis. 417; Wilkins v. Nicolai, ante, p. 178. In Greenblatt v. Hermann, 144 N. Y. 13, the defendant derived title under sale by administrators of N. pursuant- to-a decree of the surrogate court, August 10, 1881, to pay debts. April 13, 1892, the plaintiff agreed to purchase of the defendant for $19,500, and pay down $1,500. May 26,. 1892, the defendent tendered a deed, but the plaintiff objected that the administrators’ sale was defective on the-ground that the petition did not purport to set forth the names of all the heirs of decedent as required by the statute. But it was held that the plaintiff made no case for recovering back the purchase money paid. In that case it was held that “ a vendee of real estate, who refuses to take title on the ground of defect therein, must point out the objection, and give proof tending to establish it, or to create such a doubt in respect thereto as to make the title unmarketable.” In Hayes v. Harmony Grove Cemetery, 108 Mass. 400, it was held that the possibility of debts against the estate of one through whom the vendor claims title, in the absence of affirmative proof thereof, was no cloud on the title, and would not prevent specific performance of the contract being decreed. In that case the vendor claimed title from the intes-tates whose estates remained unsettled. In Webb v. Chisolm, 24 S. C. 487, it was held that a purchaser cannot be compelled to take a doubtful title, but the court acts on moral certainty, and a purchaser will not be permitted to object to a title on account of a bare possibility. In Hedderly v. Johnson, 42 Minn. 443, it was held: “To make a title to real estate unmarketable, so that specific per — 560 — formance of a contract to convey will not be enforced against the vendee, there must be a reasonable doubt as to its validity. If the doubt raises a question of law, it must be a fairly debatable one,— one upon which the judicial mind would.hesitate before deciding it. If the doubt depend on a matter of fact, and there is no doubt as to how the fact is, .and if it may be readily and easily shown at any time, it ■does not make the title unmarketable.” In that case Chief Justice GilKillaN, speaking for the whole court, among other things, said: “ Courts will not compel a vendee to take an unmarketable title when he has stipulated for a good one; and a title is deemed unmarketable, within this rule, where, although it may be good, there is a reasonable doubt as to its validity. The term ‘ reasonable doubt ’ is always used in this connection, because, as a doubt might be suggested or ■question raised as to most titles, it would go far to do away with the remedy by specific performance if a mere doubt raised, without regard to its character, were permitted to defeat the action. A doubt as to the title may be raised upon a question of law, or upon a question of fact, or upon both law and fact. It is impossible to state any precise and definite rule by which to determine when a doubt raised upon a question of law is to be deemed reasonable. Without going so far as some of the English cases, we can at least say that the doubt suggested must raise a question of law that is fairly debatable,— one upon which the judicial mind would •hesitate before deciding it. . . . On the other hand, if there is no doubt as to how the fact is, and it may be readily .and easily shown at any time, the title is not rendered doubtful by depending upon it. Thus, where the title depends on the bar of the statute of limitations, and it clearly appeal’s that the real owner is barred, it is a marketable title. Pratt v. Eby, 67 Pa. St. 396. In such case' the evidence to establish it must, from the nature of the fact, be easily accessible.” The Pennsylvania case cited clearly sustains the position. — 561 — It has been held in this state that a tax title may be a marketable title. Gates v. Parmly, 93 Wis. 295. That a title depending upon the statutes of limitation may be marketable is supported by numerous adjudications. In addition to authorities cited in the brief of counsel for the plaintiff, see Seymour v. De Lancey, 1 Hopk. Ch. 436; S. C. 14 Am. Dec. 552; Murray v. Harway, 56 N. Y. 344; Shriver v. Shriver, 86 N. Y. 576; Irving v. Campbell, 121 N. Y. 353. Under the pleadings the plaintiffs were at liberty to show that the alleged Cady claim had been barred by the statute of limitation. Morgan v. Bishop, 56 Wis. 284; Mead v. Nelson, 52 Wis. 402; Gould v. Sullivan, 84 Wis. 665. Besides, it is at least ver}1- questionable whether a vendee who has affirmed the contract by conveying away portions of the premises by warranty deeds can rightfully refuse to perform any portion of his contract merely because there is a failure of record title to a small fraction of the land. We must hold that the plaintiffs tendered deeds of a good marketable title to all the premises described, September 12, 1895. , This makes it unnecessary to consider the questions of interest and costs discussed by counsel for the appellant. By the Court.— The judgment of the circuit court is affirmed.