Koepke v. Winterfield

Cassoday, O. J. Fothing need be said as to the fourth -ground of demurrer. The complaint only attempts to state .two separate causes of action. There is no pretense that the * complaint, as a whole, states any other cause of action. 2. The contention that the facts alleged are insufficient'to -constitute a cause of action for a breach of the covenant of -seisin is without foundation. The-fact that tax deeds do not •always divest the title of the original owner is without significance, since it is alleged that the defendant never had the -.actual or constructive possession, nor any title nor interest '.in the land, and that the other persons named had the title "in fee and lawful right to the land under recorded tax deeds. The defendant further contends that the allegations fail to -state a cause of action because it is not alleged that the plaint [47] iff bas reconveyed or offered to reconvey to Mm the land described in the deed to the plaintiff. The alleged cause of action is not for rescission of the conveyance, but for damages for the breach of the covenant of seisin. In such an action, it is said by a standard text-writer: “As respects the pleadings in an action upon this covenant, it has been settled from an early period that in assigning the breach of the covenants for seisin and of good right to convey it is unnecessary to do more than negative the words of the covenant generally.” Eawle, Covenants (5th ed.) § 61. “As a consequence of this, it is well settled that in an action on the covenant for seisin it is unnecessary either to aver an eviction in the declaration or lay any special damage.” Id. § 62. It was held by this court long ago: “In an action for a breach of covenant of seisin, the burden is upon the defendant to show his title, and not upon the plaintiff to show the want of it.” Beckmann v. Henn, 17 Wis. 412; Mecklem v. Blake, 16 Wis. 102. So this court has since held: “If a grantor assumes to convey with full covenants of warranty unoccupied lands to which he has no title, there is at once a constructive eviction of the grantee which entitles him to the same remedies that he would be entitled to had he 'been turned out oí the actual possession of the land by legal process.” McInnis v. Lyman, 62 Wis. 191, 194, 22 N. W. 405, 406. To the same effect, Nichol v. Alexander, 28 Wis. 118; McLennan v. Prentice, 77 Wis. 124, 128, 45 N. W. 943; Wallace v. Pereles, 109 Wis. 316, 323, 85 N. W. 371. We must hold that the facts alleged are sufficient to constitute a cause of action for the breach of the covenant of •seisin. 3. If, as contended by the defendant, the second cause of ■action fails to allege facts sufficient to' constitute a cause of action, then there is no ground for claiming that several •causes of action have been improperly united. It is only where the complaint states two or more good causes of action That a demurrer will lie for misjoinder. Bassett v. Warner, [48] 23 Wis. 673; Truesdell v. Rhodes, 26 Wis. 215; Willard v. Reas, 26 Wis. 540; Lee v. Simpson, 29 Wis. 333; Schiffer v. Eau Claire, 51 Wis. 385, 8 N. W. 253; Hiles v. Johnson, 67 Wis. 517, 30 N. W. 721. But we are constrained to liold that the second cause of action does allege facts sufficient to constitute a cause of action for damages for the alleged fraud. It is-alleged that the false representations were made with intent to defraud the plaintiff, and that she, relying thereon and believing the same to be true, conveyed her house and lot to the-defendant, and that the defendant knew at the time of such-outstanding tax deeds and ownership and title. 4. The remaining question is whether the two causes of action are improperly united. The statute declares that “the-plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated' legal or equitable, or both, where they arise out of: (1) the same transaction or transactions connected with the same subject of action.” Sec. 2647, Stats. 1898. It is very clear that the two causes of action both arose out of the same transaction, — the exchange of the house and lot for the wild and unoccupied land. The case comes within the principle of the recent rulings of this court, wherein it was, in effect, held that “a cause of action for the wrongful withholding of leased' premises after notice of intention to quit, . . . and a cause of action for the wrongful conversion of personal property included in the same lease, by failure to deliver it to the-lessor as therein provided, may be joined, . . . since they ‘arise out of the same transaction or transactions connected with the same subject of action.’ ” Alliance E. Co. v. Wells, 93 Wis. 5, 66 N. W. 796, as explained in State ex rel. Alliance R. Co. v. Helms, 101 Wis. 280, 283, 284, 77 N. W. 194; Endress v. Shove, 110 Wis. 133, 139, 85 N. W. 653.. We must hold that the two causes of action were properly united. By the Court. — The order of the circuit court is affirmed..