Krakow v. Wille

Siebeokee, J. The complaint contains two causes of action, the one equitable and the other legal. The former is alleged for the purpose of obtaining a reformation of the contract by the correction of the alleged misdescription of the premises intended to be covered by the parties, and the latter sets forth the facts whereon plaintiff asserts the right to re- • cover damages for the injury done to the freehold by the severance of trees by the defendant after the making of the contract for the sale of the land and before its conveyance by deed to the plaintiff under the conditions of this sale. It has been held that these causes of action might be joined in one complaint and appropriate relief granted in one judgment. The approved practice is that the equitable issue be first tried by the court and the legal issue be then tried by a jury. Cameron v. White, 74 Wis. 425, 43 N. W. 155; Harrison v. Juneau Bank, 17 Wis. 340; Aultman Co. v. McDonough, 110 Wis. 263, 85 N. W. 980. It is contended by respondent that the facts alleged in the •second cause of action do not constitute a cause of action, [287] ■upon the ground tliat the facts pleaded show that, at the time the injury to the freehold is claimed to have been done, plaintiff had no such ownership and interest in the premises as is required to sustain an action for such damages. It is alleged that William Wille, the owner of the premises in October, 1900, contracted in writing with the plaintiff for the sale of the premises and a conveyance by deed upon the payment of the consideration in the manner prescribed, and that in April, 1902, after plaintiff had paid the consideration required by the terms of the agreement, he and his wife executed and delivered to plaintiff a deed of the premises as specified in the contract, which deed, it is averred, correctly describes the premises mutually intended to be included in the contract. It has repeatedly been held in the decisions of this court that the purchaser under an ordinary land contract is regarded in law as the equitable owner of the land purchased, and that the vendor holds the legal title to secure the payment of the unpaid purchase money. Church v. Smith, 39 Wis. 492; Kimball v. Darling, 32 Wis. 675; Northrup v. Trask, 39 Wis. 515; Superior Con. L. Co. v. Nichols, 81 Wis. 656, 51 N. W. 878, and cases cited. It is claimed, however, that the relationship of the parties under the contract in question did not give plaintiff the right to the possession of the land, and he* therefore cannot maintain this action for damages to the freehold. The agreement expressly provides that plaintiff should pay all taxes upon the land from the date of the contract, that he should keep up the improvements, and, whenever default in payment of the purchase money should occur, he should hold the premises from the date thereof as tenant at sufferance. In the recent case of Hill v. Sidie, 116 Wis. 602, 93 N. W. 446, it was held that such a contract established the relationship of vendor and vendee. The opinion expressly adverts to the case of Wright v. Roberts, 22 Wis. 161, wherein it was held that such an agreement created the relationship of landlord and tenant, and [288] declares its adherence to and approval of the holding to the contrary in Diggle v. Boulden, 48 Wis. 477, 4 N. W. 678. In Martin v. Scofield, 41 Wis. 167, it was determined that, though a contract like the one in question did not in terms declare the vendee to have possession of the land, it did'by necessary implication vest' the right of possession in him, and under these circumstances the vendee, as equitable owner, had the right to maintain trover or replevin for timber cut upon such land without his consent. Other cases in this and other courts sustaining this doctrine are: Northrup v. Trask, supra; Jones v. Costigan, 12 Wis. 677; Kimball v. Darling, supra; Marsh v. Current, 6 B. Mon. 493; Hueston v. M. & R. R. B. Co. 76 Minn. 251, 79 N. W. 92. See, also, 29 Am. & Eng. Ency. of Law (2d ed.) 705. The principle of the foregoing adjudications is conclusive of the question presented, but, in addition, it seems clear that the doctrine of relation is applicable to this case. It is alleged that on April 10, 1902, pursuant to the contract of October 27, 1900, Wille and his wife executed and delivered a deed of the premises upon full payment of the consideration specified in the contract. The delivery of this deed is not regarded in the law as alone constituting a sale of the land, but is the final step of the transaction, which consummated it pursuant to and in accordance with the precedent contract between the parties. Under such circumstances the deed relates back to the contract, and, for the promotion of justice and for the protection of the purchaser, the title is considered, as between the parties, as having vested in the grantee from the time the contract was made. In Stahl v. Lynn, 86 Wis. 75, 56 N. W. 188, this court sanctions the statement of this doctrine as stated by Mr. Justice Eield in Gibson v. Chouteau, 13 Wall. 92: “By the doctrine of relation is meant that principle by which an act done at one time is considered, by a fiction of the law, to have been done at some antecedent period.. It is289 usually applied where several proceedings are essential to complete a particular transaction, such as a conveyance or deed. The last proceeding which consummates the conveyance is held for certain purposes to take effect by relation as of the day when the first proceeding was had.” We deem the rule applicable to the instant case, and under it plaintiff’s title to the land had its inception on the date of the'written contract, namely, October 27, 1900, and, so far as it may be necessary to protect his rights in the land conveyed, the title is held to have taken effect by relation as of that date. Sutherland v. Goodnow, 108 Ill. 528; Young v. Guy, 87 N. Y. 457; Cummings v. Newell, 86 Minn. 130, 90 N. W. 311; Womack v. Powers, 50 Ala. 5; Carney v. Reed, 11 Ind. 417; Thompson v. Spencer, 50 Cal. 532. The court erred in holding that -the complaint failed to state a cause of action, and the order sustaining the demurrer must be reversed. By the Court. — The order appealed from is reversed, and the cause is remanded with directions to overrule the demurrer, and for other proceedings according to law.