Atwater v. Schenck , 9 Wis. 160 ( 1859 )

By the Court,

Cole, J.

Although the bond or instrument signed by the parties to this suit, bearing date on the 19th day of January, 1857, which was offered in evidence in support of the counter claim, is not very artistically drawn, yet we do not think there can-be any difficulty whatever in ascertaining the land which the plaintiffs in error therein agreed to convey to the defendant in error. The circuit court charged the jury that the bond was void for uncertainty of description. The land which was to be conveyed was described as the “southwest of the southwest quarter of section three, township ten, north of range fourteen east, excepting ten acres formerly deeded by John Corwith to Wm. H. Dear-born, out of the southwest corner, containing thirty acres, more or' less.” It will be seen that the county and state are not mentioned. But still, the courts will take judicial notice of the government surveys, and the legal subdivisions of the public lands; and, as the parties to this contract all reside in this state, will presume that the land referred to is situated in this state, at least until something to the contrary appears. But, moreover, the plaintiffs in error offered to identify the land by a witness, and also by the deed referred to in the bond. This was competent evidence and should have been received.

It appears that the plaintiffs in error set up a part of the amount due them on this bond, from Schenck, as a counter claim to his suit upon the note. Having proved that they were willing and ready to convey the land before the commencement of the suit, and had placed themselves in a situation to claim the purchase money, we cannot see why the amount due upon the bond did not constitute a proper counter claim. There can be no doubt but a specific performance of this contract should be enforced and Schenck compelled to pay the contract price of the bond. Sections 55 and 56 of the code are very broad as to what is a proper subject of a coun ; ter claim. It may be a cause of action arising upon contract, and existing at the commencement of the suit, whether it is such as has heretofore been denominated legal or equitable or both; (see R. S. 1859, chap. 126, § 1, sub. 1.) We therefore are of the opinion that the court improperly refused to instruct the jury as requested on behalf of the plaintiffs in error, to the effect, if they should find from the evidence, that Schenck had been in possession and occupancy of the land mentioned in the bond, since the same was executed, and that the plaintiffs in error were ready and willing, and did offer to deed the land agreeably to the condition of the bond, prior to the commencement of the suit, upon being paid the amount therein stipulated to be paid, and Schenck refused to take the bond or receive the conveyance; that then the plaintiffs in error were entitled to a set off on the bond for the land sold, as against the action brought upon the note sued on.

A question was made as to the right of Schenck to maintain an action on the instrument sued upon, without alleging and proving an offer to surrender it up and demand a conveyance, &c. We do not understand, from the condition annexed to the note, that the doing of this was necessary before Schenck could bring suit on the note. He had his option by that condition, to have the amount of the note applied on the bond in payment of the bond, or to receive eighty dollars on the note. Had Schenck made a voluntary application of the amount of the note upon the bond, he would have been enti-tied to a credit of one hundred dollars; while, if the bond is permitted to be set up as a counterclaim, and the law makes the application, he will be only credited with eighty dollars. But we do not see how this strange result is to be avoided in view of the course pursued by Schenck, the stipulation of the parties, and the inflexible rule of law in reference to set-offs.

The judgment of the circuit court is reversed and a new trial ordered.