Schumaker v. Hoeveler , 22 Wis. 43 ( 1867 )

Paine, J.

Whatever may have been the secret intentions of the defendant as to claiming under his tax title at the time he entered upon the premises, it sufficiently appears from the evidence that Mrs. Berg supposed he had entered in pursuance of his understanding with her that he was to take the property and pay off the incumbrances. It appears, also, that he must have been aware that she was acting upon this supposition. Because she came in and went to him for the purpose of executing the papers, and then, instead of telling her that he had abandoned all idea of carrying out his promise to her, and had bought a hostile title and entered under that, he went with her to see if she could give a good deed. And he himself testifies that he only gave up the idea ,of buying of her after he found that she could not give a •good deed. This was sometime after he had entered, and the statement is to some extent repugnant to his declaration .that he entered solely under his tax title; for it shows that at the time lie entered, lie was relying on, and still intending to carry out, Ms arrangement with. ‘Mrs. Berg. It was entirely natural for her to suppose that he had entered in pursuance of that arrangement, and his conduct was such as to confirm that supposition. If, then, after he found out that she could not give a good deed until the expiration of ten years, he decided to abandon the idea of buying of her, and to rely on his tax title in hostility to her interests, it was incumbent on him to so inform her'. But instead of that, she testifies that she told him he could stay in the house and she would give him a deed as soon as she could, and that he still promised to pay the Schumaker mortgage. This w;as a direct assumption on her part that he had entered under her authority, and that she had' the right to dispose of the possession. And he made no claim or intimation to the contrary, hut still promised to pay the Schumaker mortgage. This conduct was calculated to deceive her, and throw her entirely off her guard against his tax title. And it should estop him, as against her, from setting up his tax title, after she had thus been lulled to sleep on her rights until the expiration of the three years of limitation.

There being, therefore, good ground for an estoppel in favor of Mrs. Berg, it follows that the plaintiff’s mortgage should he enforced; because that is the only way that her interests can he protected. Eor if the mortgage is not collected from the land, it will he collected out of the personal estate which was willed to Mrs. Berg.

The amendment of the complaint to make it conform to the facts proved, though perhaps a striking illustration of the liberality of the present practice, was yet within the rule established by the authorities upon that subject; many of which are cited by the respondent. It will be observed that there was no change whatever of the cause of action. The ■cause of action was the the foreclosure of a mortgage, upon property of which the defendant was in possession. The complaint anticipated and sought to avoid a defense by alleging one ground of estoppel. The facts proved, , showed that this defense should be avoided by another ground of estoppel; and the complaint was amended accordingly. It was probably unnecessary for the complaint to have' anticipated this defense at all; and then, when the defendant had set up his tax title, it could have been avoided by the proof, without any replication setting up the facts relied on in avoidance. But the complaint having undertaken to set forth all the facts, there was no objection to allowing the amendment.

In all such cases, if the defendant is taken by surprise, or is in any way liable to be prejudiced, he should apply to the court below for a continuance, new trial, or other appropriate relief; and if that is denied, he .can have his remedy.

The judgment of the court below does not rest upon the ground that a binding contract by the defendant to pey this mortgage, was sufficiently proved to be enforced as such, but upon the ground of estoppel. And on that ground we think it should be affirmed.

By the Court. — Judgment affirmed, with costs.