Darling v. Nelson

[345] The following opinion was filed March 9, 1920: Eschweiler, J. The court below found, and under the testimony in the record before us there is- ample support for such finding, that the claim of the plaintiffs that there was an intentional fraud perpetrated upon them either in 1907 or 1912 by the defendants, or either of them, was not in accordance with the facts, and in effect that the understanding of the parties was that all of the real estate, instead of but eighty acres thereof, should be conveyed to the defendants and in accordance with the terms of the various deeds. The title thus conveyed by such respective deeds of 1907 and 1910 was expressly confirmed by the judgment herein. These findings and the judgment entered thereupon negative the existence of facts upon which could be predicated the equitable relief which was the substance of the prayer in plaintiffs’ complaint. The court found facts as the basis for, and thereupon gave plaintiffs, a judgment which was in form, substance, and effect for money damages alone and not for equitable relief. The right to such legal damages as were thus adjudged by the court sprang into being, if ever, in 1907 at the time there was made the mistake in estimating the amount to be paid the respective plaintiffs for their interests in the real estate. It came into being, if at all, when, pursuant to the agreement, the conveyances of the real estate were made for a consideration the amount whereof was computed at a lesser amount than it should have been.. The only right plaintiffs had after the delivery of the deeds which were intended to and did convey all the interest of plaintiffs in the real estate, was to demand from defendants larger amounts of money than those paid. It was a then present right to have more money, was due then, arose then and not afterwards. Being, therefore, but a money demand, it became then subject to the provisions of sub. (3), sec. 4222, Stats., prescribing six years as the limit of the period within which [346] an action might be brought for the recovery upon such an obligation, and it was barred long prior to the commencement of this action. That the parties remained in ignorance of the alleged mistake in computation and of their possible rights in the matter until 1913 did not prevent the application of .the statute of limitations above mentioned nor bring them within sub. (7) of the same statute, providing for the commencing of the running of the six years from the time only of the discovery of the fraud for which relief may be had in certain equitable actions. Jacob v. Frederick, 81 Wis. 254, 51 N. W. 320; Pietsch v. Milbrath, 123 Wis. 647, 659, 101 N. W. 388, 102 N. W. 342; State v. C. & N. W. R. Co. 132 Wis. 345, 361, 112 N. W. 515; Ott v. Hood, 152 Wis. 97, 100, 139 N. W. 762; Stahl v. Broeckert, 170 Wis. 627, 176 N. W. 66. It is further suggested that inasmuch as there was no specific reliance upon the statute now. made the basis of the present disposition of this matter by pleading it in the court below, defendants cannot now take advantage of the same. The defendants, however, had no proper opportunity nor then need of asserting their reliance upon such statute in the court below. The plaintiffs asked only for relief proper in an action in equity. The court denied them such relief and of his own motion gave them that which would be proper in an action at law. This, therefore, is the first opportunity the defendants have had to assert such statute, and they are entitled to its benefits. It follows, therefore, that the judgment awarding money damages to the plaintiffs as against the defendants must be vacated and set aside because barred by the statute of limitations and the complaint be dismissed. By the Court. — The judgment so far as awarding money damages to the plaintiffs is reversed, and the cause remanded with directions to dismiss the complaint. A motion for a rehearing was denied, with $25 costs, on May 4, 1920.