Carisch v. Lund

Eschweiler, J. While defendant’s answer in form, so far as its allegations of' fact are concerned, seems to assert [492] only a defense against the plaintiff’s claim for relief, yet in the prayer for judgment the affirmative relief is asked that the judgment of December, 1925, for $154.35 should be held to be a lien upon the real estate. Though not so conceded by the answer, yet it appears that such assertion of lien was made in recognition of the priority of a $7,000 mortgage given by plaintiff while he held the equitable title under the warranty deed to him from Standish. It is conceded that the warranty deed to Carisch and the land contract back to Standish on August 15, 1924, were but one transaction and amounted to a mortgage only. Defendant’s main contention is that the judgment for $154.35, upon being entered and docketed December 17, 1925, became a lien upon the interests Standish then had to this real estate; that through the deed and land contract Carisch held an equitable interest to the amount of the obligations then due him, and Standish remained the holder of the legal title; and that when plaintiff, in May, 1925, acquired the legal title through the two quitclaim deeds, one from Smith, to whom Standish and wife had quitclaimed, and one from the bank, to whom Standish had assigned his interest in the land contract, thereupon there was a merger of the lesser, or equitable, title in the greater, the fee or legal title, and that, the equitable title thus disappearing, plaintiff had left but a legal title, and that title subject to the lien of the judgment. The general rule is not disputed, viz. that by a meeting in the same person of a greater and lesser estate, there being no intermediate estate, the lesser estate thereby ceases to exist. Scheuer v. Chloupek, 130 Wis. 72, 79, 109 N. W. 1035; Gilchrist v. Foxen, 95 Wis. 428, 440, 70 N. W. 585; Scott v. Webster, 44 Wis. 185, 193. This general rule, however, is by no means absolute or conclusive, for it is also established law that it is within the power of one so holding the two titles, and intending so to do, to still preserve them as separate and distinct estates if it be to his benefit, and to [493] thereby prevent some other incumbrance on the property theretofore subordinated to such lesser estate to step up, as it were, by the extinction of such lesser estate, if merger were had, and thus become superiorato some interest existing through such lesser estate. Bahrs v. Kottke, 192 Wis. 642, 645, 212 N. W. 292; Aiken v. M. & St. P. R. Co. 37 Wis. 469, 477; Morgan v. Hammett, 34 Wis. 512, 524; Webb v. Meloy, 32 Wis. 319, 322. While there was testimony by plaintiff indicating his intention to have such a merger, inasmuch as he speaks of his expecting that he would have an entire title, and' from which testimony it is ably argued that a merger was accomplished, yet it might well have appeared to the trial court hearing the testimony that plaintiff did not fully comprehend the questions asked of him and from other statements that he made on the trial, and it being so evidently to his advantage that he should not lose the priority by his claim under the land contract, we cannot now disturb the conclusion of the trial court that there was no merger. While perhaps the trial court was not justified in expressly declaring that the land contract of August 17, 1924, between plaintiff and Standish was to be deemed canceled and of no further effect, the Standishes not being parties to this action, yet the defendant Lund manifestly cannot complain of such provision in the judgment, it becoming immaterial, so far as the Standishes are concerned, they having theretofore conveyed all their interest. Neither is the defendant Lund entitled to attack this judgment as being inequitable on the grounds, as he now asserts, that there was no proper claim for or showing of default in the terms of the land contract by Standish, it not being due according to its terms at the time of the trial, and especially so by reason of plaintiff’s failing to give credit for the money he had received from the chattel-mortgage sale and the rents, and that therefore the present claim for such cancellation should be deemed premature. The defendant, however, is now in no position [494] to so claim, he having at no time, either by pleading oy by proceedings on the trial, requested that there should be any accounting or ever offered to pay or secure the payment of any amount that might be equitably due the plaintiff pursuant to the land contract. The result of the judgment below, which in effect bars defendant Lund from any title or interest in the land, was right and must be affirmed. By the Court. — Judgment affirmed.