Andrews v. Fluekiger

Eschweiler, J. It was conceded on the trial and found by the court to be the fact, that at the time of the execution of the land contract in 1907 all the parties thereto were competent to contract, and it is unquestioned that a good and merchantable title could have been then conveyed. So that if there be any cloud or incumbrance upon the title to this property it must be based upon facts occurring or situations arising subsequent to the execution of said land contract. So far as defendants were concerned, their rights under the land contract of 1907 were not impaired or altered by the conveyance from Mrs. Chapman to the plaintiff in 1914. That conveyance being expressly made subject to this land contract, the grantee, the plaintiff herein, could not assert thereunder rights adverse or superior to those of defendants. Besides, both grantor and grantee in the warranty deed of 1914 were grantors in the land contract and under covenant therein to convey all the title either of them had to defendants. So that were the daughter, Grace, able to have this [355] warranty deed from her mother to her aunt set aside, it would avail nothing as against the rights of the defendants under the concededly valid land contract; at most such setting aside would go only to the question of the disposition to be made of the proceeds upon payment by defendant of the purchase price. The assertion, therefore, by a stranger to the record title of any claim of right to have the warranty deed from sister to sister, recognizing as it did the land contract, set aside, was without sufficient substance to warrant it being considered any impairment of the title that the defendants would receive under the warranty deed provided for in the judgment herein. The direction of the court below that both the plaintiff and Mrs. Chapman should join in the warranty deed to be delivered to' defendants upon payment of the purchase price, and which condition, it appears, has been complied with, was clearly the proper thing to do and within the province of the court in this action. McIndoe v. Morman, 26 Wis. 588; Emerson v. Schwindt, 114 Wis. 124, 89 N. W. 822. It being apparent from the record that even were the daughter, Grace, to have the fruition of the hopes she apparently entertained in making the contract and deed with and to her attorneys in April, 1916, as to the property rights of her then living mother subsequently coming to her as a surviving and only child of Mrs. Chapman, she did not then have, nor could she afterwards receive, any rights in this real estate superior to those Mrs. Chapman had, and at this time Mrs. Chapman had herself carved out from the fee the interest secured to defendants by the land contract. The objection to a title to be conveyed under an obligation to give a good or marketable title must raise at least a reasonable doubt as to the validity of the title upon a question of law or fact. First A. M. E. Soc. v. Brown, 147 Mass. 296, 17 N. E. 549; 39 Cyc. 1456; Kahn v. Chapin, 152 N. Y. 305, 46 N. E. 489; Lamotte v. Steidinger, 266 [356] Ill. 600, 107 N. E. 850; Tripp v. Sieler, 38 S. Dak. 321, 161 N. W. 337, 39 S. Dak. 221, 164 N. W. 67. There was material substance to the objections raised and passed upon in the cases in this court, such as a building restriction in Neff v. Rubin, 161 Wis. 511, 154 N. W. 976; a sheriff’s deed, Stack v. Hickey, 151 Wis. 347, 138 N. W. 1011; a recorded plat covering the same property and claim of title there under, Suring v. Rollman, 145 Wis. 490, 130 N. W. 485; title to part based upon claim of adverse possession and not record title as represented, Zunker v. Kuehn, 113 Wis. 421, 88 N. W. 605; defective acknowledgment so as to prevent recording, Harrass v. Edwards, 94 Wis. 459, 69 N. W. 69. We can see no' more weight to be given to- the other proposition urged by appellants, viz. that by what was admitted by plaintiff’s testimony here and in the guardianship proceedings in the county court was understood between the two sisters at the time of the deed to plaintiff in October, 1914, i. e. that what was left of the property after caring for Mrs. Chapman was to be transferred to Grace Johnston, such a trust was created in her favor as made an incum-brance or cloud upon any title that the plaintiff might attempt to' convey. It is unnecessary to and we therefore do not determine whether any such agreement resting in parol could be recognized or enforced, in face of the provisions of sec. 2302, Stats., requiring all estates or interests in land, other than leases for a term not exceeding one year, to be in writing. See Ill. S. Co. v. Konkel, 146 Wis. 556, 566, 131 N. W. 842; Richtman v. Watson, 150 Wis. 385, 391, 136 N. W. 797. Such question is of no' materiality here, for in no event could any rights be asserted hostile or superior to those given defendants by the land contract, for the trust, if any such was created, could not be so asserted as to contradict or nullify the express language of the warranty deed under which, if at all, it gets vitality. That instrument expressly subjects the rights thereby given to the rights of the land contract. If Grace A. Johnston claims any interest [357] created by this warranty deed, she cannot claim as against its express terms limiting its extent. We are satisfied, therefore, that the trial court was entirely right in holding that there was no such cloud or bona fide claim against the title that could be conveyed by the warranty deed provided for in the judgment from the plaintiff and Mrs. Chapman that would make it less than the good and marketable title the defendants were entitled to under their land contract. By the Court. — Judgment affirmed.