Radant v. Werheim Manufacturing Co.

Maeshall, J. The judgment appealed from is grounded, first, on a defect of parties, and, second, want of equity. The first ground mentioned is untenable. A defect of parties must be taken advantage of by demurrer if it appears on the face of the complaint, otherwise by answer, or it will be deemed to have been waived. Kimball v. Noyes, 17 Wis. 695; Dreutzer v. Lawrence, 58 Wis. 594; Hallam v. Stiles, 61 Wis. 270. The objection that there is a defect of parties, either plaintiff or defendant, is never a good ground for the dismissal of a complaint on a trial upon the merits. The second ground upon which appellant’s claim was dismissed must be sustained, if at all, upon the familiar principle of equitable estoppel, that “ he who keeps silent when in good conscience he ought to speak shall be debarred from speaking when conscience requires him to be silent.” If appellant owed a duty of disclosure to respondent respecting his title, and, by failure to do so, respondent was led to incur expense to perfect his lien judgment and enforce it, upon the belief that Eadant, Sr., was the owner of the property, equity cannot properly aid him to change his situation to respondent’s prejudice. [603] Among the earliest applications of the principles under discussion are cases where the owner of property stood by without disclosing his ownership, while another in good faith dealt with such property as that of a third person; and it was held that such owner was in duty bound to correct the error of such other before he so acted as to be prejudiced thereby. Pickard v. Sears, 6 Adol. & E. 469; Gregg v. Wells, 10 Adol. & E. 90; Heane v. Rogers, 9 Barn. & C. 577, 586; Graves v. Key, 3 Barn. & Adol. 313, 318; Niven v. Belknap, 2 Johns. 572. In Pieka/rd v. Sears, supra, to which most of the later authorities refer, it was said, in effect, that one who stands by and keeps silent while his property is being dealt with in good faith as the property of another, ceases to be the owner of such property so far as otherwise the party misled would suffer. That is elementary and has often been applied by this court. Waddle v. Morrill, 26 Wis. 611; Anderson v. Coburn, 27 Wis. 558; Kingman v. Graham, 51 Wis. 232; Wheeler & W. Mfg. Co. v. Monahan, 63 Wis. 198. That doctrine was applied in Baehr v. Wolf, 59 Ill. 470, where a person who-held an unrecorded land contract, knowing that another was negotiating to purchase the land of his vendor without notice of the existence of such contract, failed to notify such other of the true state of the title. The last case cited brings out the principle under discussion, as applicable to this case, quite clearly. It appears by the record that respondent dealt with Radant, Sr., as the owner of the property in controversy, from the time the indebtedness accrued. The appellant knew that fact soon after the action was commenced. His claim to the property was under an unrecorded land contract. lie knew, or ought to have known, from the time the action was commenced, that respondent was proceeding in error as to the true state of the title. He was the real beneficiary of the material for which the indebtedness constituting the lien claim accrued. [604] Notwithstanding these facts, he kept silent as to his unrecorded contract, though he at one time actually appeared in the action, till respondent had incurred the expense of obtaining the lien judgment and further expense towards enforcing it, and then, without offering to pay for the material, for. which appellant acknowledged on the trial of this action he was the real debtor and beneficiary, he commenced such action. Equity cannot aid the appellant, under the circumstances stated, to prevent the enforcement of the lien judgment. It will consider Radant, Sr., for the purposes of this action, as the owner of the property affected by the judgment. Appellant could readily have brought the true state of the title to the attention of respondent before the lien judgment was entered, and thereby have prevented its rendition and all necessity for this action, unless the judgment were based on an adjudication that the respondent’s claim, under the circumstances, was a lien on appellant’s interest in the property. Appellant failed to do that till respondent, with his knowledge, incurred considerable expense in efforts to collect its claim by the remedy given by the lien statute. Such failure was accompanied by circumstances clearly indicating a design to mislead respondent up to a point where a2cpel-lant’s interest in the property could not be reached in a lien suit. "As soon as that point was supposed to have been passed, appellant placed his land contract on record so as to deter respondent from enforcing its judgment; and that not being effectual, appellant appealed to a court of equity to aid him. The trial court correctly decided that appellant has no standing in a court of equity. By the Court.— The judgment of the circuit court is affirmed. BardeeN, J., took no part.