Frede v. Pflugradt

55 N.W. 159, 85 Wis. 119, 1893 Wisc. LEXIS 243

• Court: Wisconsin Supreme Court
• Decided: May 2, 1893
• Status: Published

Opinion

Winslow, J.

There being no bill of exceptions, the evidence is not before us, and the findings of the court must be accepted as verities. By them it appears that after the execution and delivery of the deed of lot 28 as collateral security only, the defendant Pflugradt, by oral agreement, purchased the lot of plaintiff, paid full consideration therefor, and went into possession thereof. These facts clearly entitled defendant Pflugradt to a specific performance of the oral contract to convey. Blanchard v. McDougal, 6 Wis. 167. The plaintiff contends that these facts are only available to defendant in an action brought to compel specific performance, or under a counterclaim for that purpose in the present action. The position is not tenable. The plaintiff has come into equity, asking that her deed to defendant be canceled and the defendant’s title be compulsorily "released to her. Surely equity will not do this when it appears that the defendant is clearly entitled to a conveyance of the premises from the plaintiff. It might have been better to have pleaded the facts as a counterclaim, and prayed for affirmative relief, but the failure so to do does not prejudice plaintiff, nor will it suffice to compel a court of equity to do that which is monstrously inequitable. The statement of the proposition would seem to be its own answer.

By the Oowrt.— Judgment affirmed.