Leis v. Van Dyke ( 1923 )

Rosenberry, J.

The defendants never having paid anything upon the purchase price, the right of a vendee to recover in the event of the rescission of a land contract does not arise in this case. The plaintiff did not recover upon the notes but was permitted to recover the reasonable rental value of the premises, together with the stumpage value of the timber, cut and removed therefrom by the defendants while in possession thereof. The court having found in favor of the defendants and the judgment having awarded them everything claimed by them, the sole question to be determined here is whether or not the court rightly awarded the plaintiff in the action the rental value of the premises, together with the stumpage value of the timber cut and removed by the defendants, less the amount paid by them for taxes during the time they were in possession.

A considerable part of the brief of appellants is devoted to questions which, as we view the case, do not arise upon this record. The plaintiff did not recover upon the contract or upon the notes, nor does the plaintiff attempt to sustain the judgment here upon that theory. It is the contention of the defendants that under the rule laid down in Hill v. Sidie, 116 Wis. 602, 93 N. W. 446, such recovery cannot be had for the reason that the relation of landlord and tenant does not arise upon default of a vendee upon a land contract, even though the contract so provides. The plaintiff in this case recovers such an amount as is necessary to place the parties as nearly in statu quo as is possible and not upon any covenant contained in the contract. The undisputed evidence in this case shows that the defendants had possession of this farm, which had upon it at the time they purchased it a valuable crop; that during the two years they had the use of the personal property and cut and removed some of the timber. It is an elementary rule that upon the rescission of the contract the parties are to be placed as nearly as possible in statu quo. The defendants having had the use of the plaintiff’s property, they are certainly justly chargeable with the reasonable value of that use and also with such sum as will fairly compensate the plaintiff for the property removed from the premises and appropriated by the defendants. Wright v. Dickinson, 67 Mich. 580, 35 N. W. 164, 11 Am. St. Rep. 602; Rice v. Ashland, 114 Wis. 130, 89 N. W. 908.

By the Court. — Judgment affirmed.