Pippin v. Richards

EeRWIiv, J.

The appellant attacks the sufficiency of the complaint on the ground that it appears therefrom that plaintiff had an adequate remedy at law. And further, appellant contends on the merits that the findings are not supported by the evidence, and that the court erred as matter of law in finding that plaintiff was entitled to judgment.

1. The objection to the complaint cannot avail the appellant, even if it he conceded .that the complaint failed to state a good cause of action in equity, for the reason that objection thereto on that ground was not seasonably made. An objection to the complaint on the ground that the plaintiff has an adequate remedy at law must be made by demurrer or answer or it is waived. Midlothian I. M. Co. v. Dahlby, 108 Wis. 195, 84 N. W. 152; Bigelow v. Washburn, 98 Wis. 553, 74 N. W. 362; Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Sweetser v. Silber, 87 Wis. 102, 58 N. W. 239; Sherry v. Smith, 72 Wis. 339, 39 N. W. 556. In the case before ns no objection was made to the complaint by demurrer or answer, or even by objection to evidence under the complaint, therefore it becomes unnecessary to consider whether upon the face of the complaint it appeared that the plaintiff had an adequate remedy at law.

2. We think the findings are supported by the evidence and shall spend no time in discussing the errors assigned under that head. The representations upon which plaintiff relied and conveyed his land to defendant Boyer being false and fraudulently made and the consideration for the conveyance to Boyer having failed, the plaintiff was entitled to rescind. Moreover, the insolvency of Boyer left plaintiff without any other remedy. The serious question in the ease is whether the. possession by plaintiff, after his conveyance to Boyer, was sufficient to charge Richards with notice of the plaintiff’s rights under his contract with Boyer. It is insisted by appellant that the possession by plaintiff was no notice to defendant Richards, because the deed from plaintiff to Boyer was a warranty deed; and moreover, that, plaintiff not having discovered the fraud at the time of execution and delivery of the deed to Richards, plaintiff’s possession could only be notice of what he knew at the time Boyer deeded to Richards, and that the proof shows that plaintiff was to remain on the premises only until notified to move therefrom. But it will be remembered that the sole consideration for the Rusk county land was the conveyance of the Missouri land, of the character represented, within sixty days, and the agreement to convey was in writing, so all the equities of the plaintiff under the agreement ■could have been discovered by mere inquiry of plaintiff as to the extent of his rights. The plaintiff being in possession of the land when defendant Richards purchased, she was charge-. able with such notice as reasonable inquiry would have disclosed. This is the rule of constructive notice by possession of land as laid down by this court. Brinkman v. Jones, 44 Wis. 498, 519. The theory of the law is that the person in possession may be asked to disclose the right or title which h& has in the premises, and the purchaser will be chargeable with the actual notice he would have received had he made inquiry. Mateskey v. Feldman, 75 Wis. 103, 43 N. W. 733; Brinkman v. Jones, supra. In Frame v. Frame, 32 W. Va. 463, 478, the court said:

“The earth has been described as that universal manuscript, open to the eyes of all. When therefore a man proposes to-buy or deal with realty, his first duty is to read this public manuscript, that is, to look and see who is there upon it, and. what are his rights there. And, if the person in possession has an equitable title to it, he is as much bound to respect it, as if it„was a perfect legal title evidenced by a deed duly recorded.”

But it is argued by appellant that, since plaintiff did not know of the fraud when deed was made to Richards, the facts-in respect thereto could not by inquiry have been discovered. Plaintiff, however, would be bound at his peril to disclose the facts covered by the contract between himself and Boyer and that the contract on the part of Boyer had not been performed. This would have been sufficient to charge Richards with knowledge of plaintiff’s equities in the land deeded to Boyer. Moreover, the court below found upon sufficient evidence thafy at the time the deed was made to Richards by Boyer he' (Boyer) was insolvent, and that Richards was chargeable with knowledge of such insolvency. Rindskopf v. Myers, 87 Wis. 80, 57 N. W. 967. In order to be protected as a tona fide purchaser one must purchase in the honest belief that his vendor had a right to sell, and without notice, actual or constructive, of any interest or equities of others in the property. 5 Cyc. 719 and cases cited. The doctrine is well settled in this state that actual possession of land is constructive notice to subsequent purchasers. Stewart v. McSweeney, 14 Wis. 468; Fery v. Pfeiffer, 18 Wis. 510; Coe v. Manseau, 62 Wis. 81, 22 N. W. 155; Simanek v. Nemetz, 120 Wis. 42, 97 N. W. 508; Wickes v. Lake, 25 Wis. 71.

It is plain from the terms of the contract between plaintiff and Boyer that Boyer was entitled to the land only on condition that within sixty days he deeded to plaintiff the land in. Missouri and that said Missouri land was in accordance with the representations. It appears from the evidence that the land never was deeded to plaintiff, and that in fact Boyer had no title to it and procured none, and that it was represented' to he worth $25 an acre when in fact it was worth only $3. The sole consideration for the land deeded to Boyer by plaintiff being the Missouri land and that consideration not having-been paid at the time Boyer deeded to defendant Richards, which facts could have been ascertained upon inquiry of plaintiff, defendant Richards was charged with constructive notice of plaintiff’s equities in the Remises.

Boint is made by counsel for respondent that Richards did' not give full value for the Pippin land, but we do not find it-necessary to consider this question, since we are convinced that Richards was charged with constructive notice of plaintiff’s equities, therefore purchased subject to his rights.

It follows that the judgment of the court below is right and' must be affirmed. We find no- reversible error in the record.

By the Court. — The judgment of the court below is affirmed.