Taft v. Reddy

.RosenberRY, J. The principal contention of the appealing defendants in this case is that the court erred in finding and adjudging that the contract as modified should be specifically performed; that the court was in error in directing a sale of the interest of the defendants in the farm, and that the court erred in awarding a judgment for deficiency against the defendants as set out in the statement of facts. Defendants’ brief reviews many of the earlier decisions of this court and attempts to deduce therefrom the proposition that a vendor under a land contract is not entitled to specific performance. It is not proposed to again review [150] these decisions. They were referred to and discussed in Oconto Co. v. Bacon, 181 Wis. 538, 195 N. W. 412. There can be no doubt that language was used in some of the earlier decisions which, taken out of its context, might justify defendants’ contention in this case. In those cases plaintiffs sought both a forfeiture of the vendee’s rights and a judgment for the deficiency against the vendee in a single action. The court held consistently that, having sought a forfeiture, the vendor could not in the same action assert a liability under the contract and have judgment against the vendee for a deficiency. In addition to the cases cited in Oconto Co. v.’Bacon, supra, history of the development of the doctrine of the vendor’s right to specific performance is to be found in an article under that title by William Draper Lewis in 41 Am. Law Reg. 1902, n. s. 65. The doctrine has been stated and restated by this court in Shenners v. Pritchard, 104 Wis. 287, 80 N. W. 458; Heins v. Thompson & Flieth L. Co. 165 Wis. 563, 163 N. W. 173; as well as in Oconto Co. v. Bacon, 181 Wis. 538, 195 N. W. 412. While the vendor’s right to specific performance is established beyond question, we. find no authority whatever for the procedure that was followed in this case. If the procedure indicated in the prayer for relief had been followed, the judgment' could not be successfully assailed. It is not the interest of the vendees in the premises that is to be sold, where specific performance of the entire contract is sought, but the land'itself. If either the second or third party to the contract of March 6, 1922, should perform, only the remaining interest would be sold. After the sale of the land and the application of the proceeds, if some part of the purchase price remains unpaid the vendor is entitled to a judgment for that amount against those who covenanted to pay it. Such a judgment is in lieu of the right [151] which a vendor originally had to compel payment by the vendee by proceeding against him for contempt for failure to comply with the order of the court. Such a drastic remedy would in our time be wholly inconsistent with equitable principles because it would amount to imprisonment for debt, a procedure which has long since been abolished. In this case the vendors proceeded not to sell the land but to sell the interest of the defendants in the land, which was merely their right to pay the purchase price before action was begun and take a deed, or after judgment to pay as specified in the judgment and take a deed in accordance with the terms of the judgment. It appears quite clearly that the land is worth at a fair valuation approximately $16,000. The interest of the defendants in the premises was therefore worth less than nothing, because it merely gave them the right to pay $25,500 and interest for land that was in fact worth $16,000. The whole procedure was erroneous and the judgment must be modified so as to-provide for a sale of the premises. After the entire premises have been sold, the proceeds of the sale applied pro rata upon the obligations of the parties of the second and third part under the contract of March 6, 1922, which appear to be several and not joint, the vendors will be entitled to judgment against the parties of the second arid third part for the several amounts remaining due and unpaid. Some criticism is made in the briefs to the effect that Oconto Co. v. Bacon, supra, is in error in omitting to include a fourth remedy, to wit, a strict foreclosure. A strict foreclosure is one of the remedies which the vendor has when he declares the contract at an end. Whether or not there are other remedies, as for instance ejectment, was not determined in that case nor will it be determined here. It would perhaps have been more accurate to have said that the [152] vendor upon default of the vendee had three courses of action rather than three remedies. Nor should it be understood from what is said in this case that where the vendees have paid a considerable portion of the purchase money and specific performance is sought not as to the whole of the purchase price but simply as to that part of it which is due, 'the circumstances might not be such that a court could and should in equity and good conscience decree a sale of the interest of the defendants as distinguished from the sale of the land, as for' instance, if the purchase price of a piece of land was $100,000, $75,000 had been paid and $5,000 was due with $20,000 unpaid but not due. Specific performance as to the $5,000 payment due might be decreed and a sale of the interest of the ven-dees under the contract directed, especially if such relief was desired by the vendees. i This record does not present such a situation. It is contended by the respondents here that the court should affirm the judgment because, while the sale was in form a sale of the interest of the defendants, it was in fact a sale of the premises, a fact established by the amount received upon the sale, it being substantially the full value of the premises; but we find no warrant for any such procedure. Parties brought into court are entitled to have their rights determined in accordance with established legal principles. Defendants have been denied that right in this case, and the mere fact that the plaintiffs were unwise enough to bid $16,000 for a worthless equity does not change the situation. It is also urged that the contract of March 6, 1922, is unconscionable and for that reason should not be enforced, it having been made in order to secure the dismissal of a similar action then pending. The trial court correctly held that the claim was without support. The fact that the vendors [153] were willing to accept a contract which was more favorable to the vendees than their position as defendants in an equitable action against them, cannot by any stretch of the imagination be construed to have been made under duress. By the Court. — The judgment appealed from is reversed, the sale made pursuant to it is vacated, and the cause is remanded with directions to modify the judgment as indicated in this opinion and for further proceedings.