Gale v. Best , 20 Wis. 44 ( 1865 )

Cole, J.

It is very clear to us that the adjudication of the county court upon this claim is a bar to this action. That court had full authority, under the statute, to allow the claim (sections 8, 31 and 47, chap. 101, R. S.); and if it decided adversely to the appellant, he had an ample remedy by appeal. It is insisted that the proceeding before the county court is no bar to the present suit, inasmuch as that court disallowed the claim upon the ground that it had no jurisdiction. It is quite immaterial what reason the county court gave for its decision. The claim was the amount due upon the land contract, and this claim against the estate the county court had a most undoubted jurisdiction over, and could have allowed. If the county court erroneously disallowed the claim because it considered that it had no jurisdiction in the matter, or for any other insufficient reason, there was a direct remedy by appeaL But so long as the decision of the county court stands unreversed, it concludes the parties upon the matter there adjudicated. The subject matter of that action, and of this, is confessedly the same, namely, the amount due on the land contract.

The appellant suggests that the county court rightly disallowed the claim against the estate for the purchase money due upon the contract, because he had made no tender of a deed; in other words, that he had no claim against the estate which could be allowed. But this is a mistake. Eor if it had been necessary for the appellant to make and tender a deed before receiving the money due on the contract, still this was no reason for disallowing the claim absolutely. The county court has authority to allow contingent claims against the estates of deceased persons, and might have allowed this, and directed the amount to be paid on condition that a proper deed of conveyance was executed and tendered. But moreover, whatever the general rulo may be in regard to tlie right of a vendor to maintain an action for the purchase money on a contract for the sale of real estate without showing performance on his part, or any offer to perform, certainly, under this contract, the appellant was only bound to convey upon the money being first paid. For the contract expressly makes the payment of the consideration money a condition precedent to the right to insist upon a conveyance. The vendee was first to make the payments and jierform the covenants on his part to be performed before he was entitled to a deed. Hence the appellant could maintain his action for the amount due upon the contract without showing any conveyance or offer to convey, and his cause of action was complete when he presented the claim to the county court.

And as the county court had fall and complete jurisdiction over the subject matter of this action, its adjudication is clearly a bar to this suit. The judgment of the circuit court must therefore be affirmed.

By the Court. — Judgment affirmed.