Ela v. Bankes , 37 Wis. 89 ( 1875 )

Cole, J.

The plaintiff Mrs. Fla founded her right and title to the property in controversy upon a sale and conveyance of the land to her by her husband, the coplaintiff. It became then essential for her to show an actual sale and conveyance of the premises, in order to maintain the action. The lease under which the defendant was in possession was liable to be terminated by a sale of the farm. In case of sale, however, and possession being required by the purchaser, the defendant was to be fully compensated for any crops, or work performed on the farm in the course of an unfinished year. But the lease manifestly contemplated an actual sale of the farm, and not a mere colorable one, to terminate it. The lease might have been valuable to the defendant, and he had the right to insist upon the enjoyment of the full term, unless the condition was fulfilled upon which he was to surrender possession.

In respect to the sale and conveyancé made by Fla to his wife, the court instructed the jury, in substance, that if Mrs. Fla had a separate estate she might purchase the farm and take a conveyance thereof; and that if an actual sale was made, it would not be invalid though one of Fla's motives for selling was a desire to terminate the lease ; that a person might desire to sell for various reasons, and if the reasons were proper, and “an actual sale and conveyance were made, such sale would be unobjectionable; but that if the plaintiffs only went through the forms of a sale and- conveyance, not intending to vest the title in the wife on a good consideration, but only in form to convey to her until the lease could be terminated, and then to make a conveyance or lease of the property subject to the disposition and control of the grantor, such a transaction would be a fraud on the defendant, and would not terminate his rights under the lease. And the court mad e the clear and sharp distinction between an actual sale of the premises pending tbe time for wbicb they were leased to tbe defendant, and a transaction where no actual sale was made, but only tbe forms of a sale were gone tbrougb witb to avoid tbe contract, and with no design really to divest tbe lessor of tbe title and control of tbe farm.

It seems to us that no valid objection can be urged by tbe plaintiffs against this charge of tbe court. We have observed that the stipulation evidently contemplated an actual sale and conveyance of tbe farm to terminate the lease. Tbe vital inquiry in tbe case, so far as the rights of Mrs. Ela were concerned, was, therefore, whether such a sale bad been made. Was the transaction a bona fide sale, or were tbe forms of a sale gone through witb merely for the purpose of terminating tbe lease, without any intention of changing tbe ownership of tbe farm? If tbe jury found from tbe evidence that an actual bona fide sale was made, though one of the inducements for making it was a desire on the part of Ela to terminate the lease, then they were directed that the growing crop, which included the hay and grain in question, became the property of Mrs. Ela, and that the defendant, by the terms of the lease, was entitled to compensation for his work and interest in the crop, from Ela.. We think this was, fairly submitting the issue of fact in respect to the bona fides of the sale, to the jury. There was certainly sufficient evidence in the case to carry to the jury the question whether, indeed, the sale was bona fide, made with intent to transfer the title and ownership of the property, or was only colorable. It is not deemed necessary, at the present time, to point out that evidence; but an examination of the bill 'of exceptions will show, we think, that there were facts and circumstances attending the sale which were calculated.to raise a suspicion as to its being a bona fide transaction. If the sale, was merely colorable, made for the purpose of terminating the lease, and to thus obtain possession of the farm, when no actual change of ownership had in fact taken place, the transaction would manifestly be a fraud upon the defendant. For he bad the right to retain the possession and to enjoy all the advantages secured by the lease until an actual Iona fide sale was made.

The plaintiff Mrs. Ela, to prove title to the property replev-ied, offered in evidence the record of a deed from her husband, bearing date April 30, acknowledged May 25, and recorded August 2, in the year 1872. A question was raised as to whether the deed had ever been delivered to the grantee so as to become operative as a conveyance. Upon that question the court instructed the jury as to what was essential to constitute a valid sale and transfer of real estate. The jury were told that the mere execution of a deed by the grantor was not sufficient, but that there must also be a delivery of the conveyance to the grantee, or to some one for his benefit; and if no actual manual delivery had been made, some facts or cases were suggested by the court, from which, if they were proven by the evidence, a delivery to, and acceptance by the grantee, might be inferred. Now, it is objected'on the part of the plaintiffs, that the court erred in submitting the question of delivery of the deed, on the evidence introduced, to be passed upon by the jury. But we think the question of delivery or nondelivery of the conveyance was fairly a question for the consideration of the jury upon the evidence, and that there was no error in submitting it with other questions of fact.

In his answer, the defendant alleged, among other things, that the property described in the complaint was grown upon lands occupied by him under the lease; that he was in possession ©f it, under the lease, as tenant in common with Richard E. Ela ; and that the conveyance under which Mrs. Ela claimed the property, was fraudulent and void. Under the charge of the court, the jury must have been satisfied that these allegations in the answer were true, and that Mrs. Ela had no title to the property in controversy. An objection, however, is taken to the verdict by the plaintiffs, and it is insisted that it does not dispose of all the material issues raised by the pleadings. The jury, in their verdict, say they find for the defendant, and that he was' entitled to the possession of tbe property described in the complaint; they find the value of the entire property, and the amount of damages which the defendant sustained by its detention. Upon this verdict, a judgment was entered for the return of the property to the possession of the defendant; and, in case a return could not be had, for its entire value in money. We think the verdict substantially disposes of all the material issues. It finds that the defendant was entitled to the possession, and, in effect, finds that the property belongs to him and Richard E. Ela. This, we think, is the meaning of the verdict in view of the issues submitted. The verdict might have formally found the value of the defendant’s interest, instead of finding the value of the entire property; but that is readily ascertained by computation, as it now stands. We do not consider that it is open to the objection taken to the verdict in Warner v. Hunt, 80 Wis., 200; Booth v. Ableman, 20 id., 21, and that class of cases. By the terms of the lease referred to in the answer, the defendant and Richard E. Ela owned the crop as tenants in common, and a finding for the defendant upon that issue is equivalent to saying that they own the property in this proportion. But the judgment not only gives. the defendant the possession of the property, but its entire money value, though, in the answer, it appears the defendant only owned one hall There is, then, a manifest error in tbe judgment, as it now stands, in awarding to the defendant the entire value, instead of entering ■ up, on the verdict, a judgment for his interest. There is really no necessity for a new trial, but the judgment must be reversed, and the cause remanded with directions to the circuit court to enter such a judgment as the defendant was entitled to, as was done in Everit v. The Walworth County Bank, 13 Wis., 420. For it seems obvious that, unless the defendant is answerable over to Richard E. Ela for his share, he has no right to recover the value of that share in this action; and the ques-tion is therefore presented, in view of the order we have concluded to make, whether Richard E. Ela could maintain an action for the value of that share if the judgment were allowed to stand as it now is. And we have very serious doubts upon that point, and are inclined to hold that he is concluded by the judgment. The property replevied was delivered to the plaintiffs, and Richard E. Ela is not only joined as a coplaint-iff, but he signed the undertaking for the return of the property, and also executed a receipt to the sheriff for the same, on his own behalf and as agent for his wife. He has seen fit to become a party to the action, and we think his rights are concluded by the litigation. If he had not voluntarily made himself a party to the suit, as he has done, a somewhat different question would have been presented. But, upon this record, he must be held estopped by the litigation; and judgment should be entered for only the defendant’s interest, damages and costs. This would be the proper judgment on the verdict.

It was further objected that the verdict, as to the quantity and value of the property, was excessive, and not supported by the evidence. This objection we deem untenable. There was a conflict in the testimony on that question, but there is certainly evidence to support the finding of the jury. But, for the reasons above given, the judgment must be reversed, and the cause must be remanded with directions to enter the proper judgment on the verdict.

By the Court. — It is SO ordered.