Delaney v. McDonald

47 Wis. 108

• Court: Wisconsin Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Ryan, C. J.

If the conveyance to the respondent did not convey all the land for which the parties bargained, his remedy was by a suit in equity, to reform the deed; possibly by counterclaim in this action. Possibly, also, upon discovery of the deficiency of the conveyance, he might have liad the right at once to rescind the contract.

But certainly he could not remain in possession of all the land which he claimed the deed should convey, rest several years after his discovery of the deficiency of the land conveyed, pay all the other notes given for consideration of the conveyance, and then set up the deficiency of the land as a complete bar to recovery on the last note. McIndoe v. Morman, 26 Wis., 588; Grannis v. Hooker, 81 Wis., 474; Churchill v. Price, 44 Wis., 540. Here there are no data even for recoupment for the deficiency. All the payments, on the respondent’s own theory, applied equally on all the land to which the latter was entitled. So does the note in suit. And perhaps the finding of the jury, that the deficiency of land was worth $80, and that there was due on the note $391.45, is a better illustration of the extravagance of the bar claimed, than any this court could give.

If the respondent’s theory of the case is correct, he appears to have still ample remedy by reformation of the deed. But he must pay the consideration of the deed for the land which he has actually held under the deed, whether the deed includes it or not. This is not the case of an executory contract, but a contract executed. And the cases turning upon executory contracts, cited by the learned counsel for the respondent, do not apply.

The appellant is clearly entitled to judgment for the amount found due on the note.

By the Court. — The judgment is reversed, and the cause remanded to the court below with directions to enter judgment for the appellant for the amount found due on the note.