Greiling v. Watermolen

Cassoday, C. J. 1. Error is assigned because the trial •court held that the diagram made and used by the administrator at the public sale, as mentioned in the foregoing statement, falsely represented Catherine street to be sixty feet wide. It is conceded that the lots in question are situated in the southern tier of lots in McCole’s addition and abut on Catherine street on the south; that that addition is wholly on private claim Mo. 9; and that the recorded plat of McOole’s addition shows that the south line of said private claim Mo. 9 is twenty-four feet south of the south line of said lots, that said Catherine street is sixty feet wide, and that the south thirty-six feet thereof is in private claim Mo. 10. It seems that at the time' of the public sale the street and lots in question were all one common, and that, although the street was open, it was not graded or worked, and that by looking at the place it could not be told whether there was any street there or not. It is also con [445] ceded, that the McLean plat is wholly in private claim No. 10, and that the north line thereof abuts on the south line of Catherine street; hut it is contended on the part of the administrator that “there is nothing on the recorded McLean plat to-indicate but what the south line of Catherine street as shown on the McCole plat is the north boundary line of the McLean plat,” for the reason that the starting point as given in the certificate on the McLean plat is indefinite and uncertain as to-that point in reference to Catherine street. In other words, the claim is that there is nothing on that plat to indicate whether the north line thereof is the north line of private claim No. 10 or thirty-six feet south of that line. The certificate of the McLean plat shows that it “is situated and laid out on all that part of private claim-No. 10 east side of Fox river, which is laying between the-continuation of Webster street of the city of Green Bay and' the continuation of Monroe avenue or the River Shore road leading from Green Bay to village of Depere. The lots in-said addition are marked and numbered, and the length and width of each lot, as also the course and distance, are expressed in figures as the plat sets forth. The starting point of survey is at the northwest eorner of lot 20 at Van Burén street, the line and direction of which is intended in all cases to- correspond with Van Burén street in the city of Green-Bay.” In other words, the plat is bounded on the east by the continuation of Webster street and on the west by the continuation of Monroe avenue and is coextensive on the north and south with the width of private claim No. 10. Among the proposed written findings which the trial court was requested by the administrator to make, is one which reads as follows :• “That Catherine street in question appears on the recorded McCole plat and also on diagram made and used by the administrator, to be a sixty-foot street, but that in fact it is-only twenty-four feet wide, being the twenty-four feet in private claim 9.” [446] In the carefully written opinion of the trial judge it is •said, in effect, that the lots in the McLean plat “come clear to the north line of private claim 10 and the south line of private claim 9, leaving nothing for Catherine street” except the twenty-four feet mentioned; and that that fact could have been “ascertained by observing the fact that the north tier of lots in the McLean plat comes clear to the south line of private claim 9, and the lots fronting on Catherine street ■on the McOole plat come within twenty-four feet of the same line;” and that “a careful inspection of the McLean plat ■shows that the north tier of lots comes to the line between claims 9 and 10.” Such conclusions seem to be supported by the record. Certainly, we cannot say that the finding of the trial court, as to the false representations in regard to the width of Catherine street, is against the clear preponderance of the evidence. 2. It is claimed by the administrator that the lots purchased by Gr&iling were actually worth what he paid for them and hence that he had sustained no damage and therefore was not entitled to a rescission of the sale. The only evidence tending to show that the lots were worth what Greil-ing paid for them is that, some four months after he purchased, two adjoining lots of equal value were sold by the •administrator at private sale for $101.50 each. It appears and is manifest that they were worth considerably less by reason of fronting on a street only twenty-four feet wide than they would have been had they fronted on a street sixty feet wide, as was supposed by both parties at the time of the purchase. By the false representations mentioned Greiling was induced to make the purchase. He was entitled to a rescission by reason of such false representations, without proof of actual damage. This seems to be well settled by numerous adjudications in this court. Miner v. Medbury, 6 Wis. 295; Mecklem v. Blake, 22 Wis. 495; Booth v. Ryan, 31 Wis. 45; Risch v. Von Lillienthal, 34 Wis. 250; McKinnon v. Voll [447] mar, 75 Wis. 82, 43 N. W. 800; Bergeron v. Miles, 88 Wis. 397, 60 N. W. 783; Hansen v. Allen, 117 Wis. 61, 93 N. W. 805. 3. We perceive no error in bolding tbat Greiling was not estopped from rescinding tbe sale by reason of tbe administrator baving paid out tbe purchase money with bis knowledge and consent. As indicated in tbe findings of tbe court, it was understood and agreed at tbe time of tbe public sale and tbe time of completing tbe purchase tbat tbe real estate, including tbe homestead, was incumbered by mortgage and tax liens,- and tbat tbe purchase moneys were to be used by tbe administrator in paying and discharging such liens, and that each bidder and purchaser, including Greiling, was to 'have title free and clear of all incumbrances; and such understanding and agreement appears to have bad tbe sanction ■of tbe mortgagee and tbe county court. After Greiling bad paid tbe purchase price of tbe lots and on November 22, 1904, tbe administrator paid tbe amount of tbe mortgage, $2,142.80, to tbe mortgagee, and on tbe next day be made and filed bis second report in tbe county court, and thereupon tbe time fixed by tbat court for tbe bearing of that report was December 6, 1904. Four or five days prior to tbe time so fixed for ■such bearing Greiling was told by Delmarcelle, tbe purchaser of another lot, tbat Catherine street was only twenty-four feet wide, and thereupon be offered to reconvey tbe lots if the administrator would pay back tbe purchase money, but be refused to do so on tbe ground tbat be bad already paid out the money. Greiling then opposed tbe confirmation of tbe sale, but tbe same was confirmed by tbe county court February 1, 1905. As indicated in the foregoing statement, tbe circuit court, on Greiling’s appeal, reversed tbe order and judgment of tbe county coui*t confirming such sale, and held tbat there was nothing in tbe circumstances which stood in tbe way of Givilmg being relieved from bis purchase; tbat it was not a question between Greiling and tbe individual [448] who happened to represent the estate, hut between Greiling and the estate; that, if the administrator had acted without authority in disposing of the money of the estate, it was a matter between him and the estate; that with the sale not confirmed the estate still owned the lots in question, and the administrator was responsible to it for the money he should have in his hands. It appears from the findings that the administrator is protected. The statute expressly authorizes the court to vacate such sale and direct another to be had, in case it should be of opinion that the proceedings in making such sale were unfair. Sec. 3896, Stats. 1898. It is only when it is made to appear to the “court that the sale was legally made and fairly conducted” that the same is to be confirmed. Id. We perceive no error in holding that Greiling was not estopped by the circumstances mentioned from rescinding such sale. 4. There can be no question that Greiling was aggrieved by the order and judgment of the county' court confirming the purchase which he was induced to make by the false representations of the administrator. This court has held that any person who has acquired an interest in the land under a sale made by an administrator or executor by order of the county court is aggrieved by an order of that court vacating the proceedings and therefore may appeal therefrom. Betts v. Shotton, 27 Wis. 667; Estate of Leavens, 65 Wis. 440, 446, 447, 27 N. W. 324, and cases there cited; Estate of O’Neill, 90 Wis. 480, 63 N. W. 1043; Levi v. Longini, 82 Minn. 324, 84 N. W. 1017, 86 N. W. 333. The converse of the proposition is equally true. By the OouH. — The judgment of the circuit court is affirmed.