State v. Conway
This text of 132 N.W.2d 539 (State v. Conway) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Two issues are presented on this appeal: (1) Does the circuit court for the county where defendants reside have jurisdiction over an action for specific performance of an option to sell real estate located in another county ?
(2) Did the trial court err in granting summary judgment?
Jurisdiction.
Sec. 261.01 (1), Stats., requires certain suits to be brought in the county where the real property in question is located.1 Subsections (b), (c), and (d) of sec. 261.01 (1) are definitely inapplicable in this action since they involve partition, foreclosure, and recovery of distrained personal property respectively. The question of whether the circuit court for Sauk county had jurisdiction in the present case turns on whether a specific-performance suit to enforce an [414]*414option to purchase real estate constitutes an. action “[f]or the recovery of real property, or of an estate or interest therein, or for the determination in any form of such estate or interest,” within the meaning of sec. 261.01 (1) (a). This precise question is one of first impression in this state, but appellants deem the holding in State ex rel. Hammer v. Williams 2 to be broad enough to cover the present facts. In Williams the court said that an action could not be brought in Rusk county to foreclose a mortgage on property situated in Price county. Williams is not controlling, however, since sec.- 261.01 (1) (c) specifically commands that mortgage foreclosure actions be commenced in the county where the land is located. There is no such specific reference to specific-performance actions.
Respondent contends that because the contract (i.e., the option) and not the land is the subject matter of the action, sec. 261.01 (1) (a), Stats., is inapplicable and the suit can be brought in the county where appellants reside pursuant to sec. 261.01 (12).3 This position is well taken for several reasons. First, to come within the purview of sec. 261.01 (1), this situation could only be covered by the “or for the determination in any form of such estate or interest” language of subsection (a). The “such estate or interest” wording, however, alludes to a previous reference to “estate or interest, therein,” which in turn relates to the “recovery of real property” language. Thus, subsection (a) as a whole keys off of “recovery of real property.” That is, actions for “recovery of real property” or “an estate or interest therein” or “the determination in any form of such estate or interest” must be started in the county where the land lies. The present [415]*415action is not one for recovery of land, and does not fall within the meaning of sec. 261.01 (1) (a).
Second, the action is to enforce the contract (option), and not to try title to the land. Appellants’ defenses to the granting of the summary judgment are contract defenses. No previous decision of this court declares that an action to enforce an underlying contract must be commenced under sec. 261.01 (1) (a), Stats. The authorities are limited to suits involving the title 4 or possession 5 of land. In addition, the partition, mortgage foreclosure, and recovery of distrained personalty actions' specified in the other subsections of sec. 261.01 (1) involve suits not based on contract.6
Third, in this case, the judgment for specific performance does not operate on the land, but upon the person.7 . The appellants are commanded to perform according to their contract with the respondent. Therefore, it is not an action made local under sec. 261.01 (1), Stats.8
We conclude therefore that the circuit court for Sauk county did have jurisdiction over the action for specific per[416]*416formance even though the land covered by the option agreement was all located in Columbia county.
Summary Judgment.
Summary judgment should not be granted where there are substantial issues of fact to be determined, when the evidence on a material issue is in conflict, or when there are permissible inferences from undisputed facts that would permit a different result.9 Appellants opposed the granting of specific performance on the grounds that they entered into the option only because of misrepresentations made by Deer-wester, the conservation commission employee. Appellant Vaughn Conway claims, in effect, that he was informed that the state was experiencing difficulty in securing neighboring property, and further that he executed the option only in response to Deerwester’s assertions that it would aid the state in acquiring other property. Conway declares that he was not told that at the time options had actually been taken on other property in the area. Finally Conway states that he was given assurance that since the state could not pay an amount for property in excess of the federal appraisal (and the option price was greater) the option would not be exercised. Deerwester denies that he made any of these representations. Thus it is apparent from the pleadings and the affidavits that there is a dispute as to just what transpired during the negotiations for the option. The facts as asserted by each side are inconsistent and wholly irreconcilable.
Respondent, however, urges that since the option contract was unambiguous, the parol-evidence rule prevents the admission of any evidence bearing on the alleged misrepresentation, and that, therefore, summary judgment was properly granted because no issue of fact remained to be determined. [417]*417But evidence of fraudulent misrepresentation is admissible, not to contradict the written terms of the agreement, but rather to demonstrate that it is invalid because induced by fraud.10 Appellants’ evidence relating to fraud would thus be admissible, and an issue of fact arises.
Respondent seeks equity. If the Conways’ claims are proven at a trial, respondent will be shown to be a party to an illegal scheme to dupe the neighbors of the Conways into selling their property to the state. Under such circumstances, the state certainly would not be coming into court with clean hands, a requirement it must first satisfy if it is to win the equitable relief it seeks. Appellants make very serious allegations which go directly to the validity of the option. They are entitled to their day in court and a chance to prove their charges.
We cannot leave this case without noting that, while the option was given in June, 1956, action was started by the state in December, 1958. Now, more than six years later trial on the merits still has not been had. Obviously, neither party has been in a hurry. Neither can complain that “justice delayed is justice denied.” 11 Nevertheless, the public has an interest in disposing of cases on crowded court dockets and this interest is undermined whenever it takes so inordinately long to litigate what appears to be a relatively uncomplicated controversy.
By the Court. — Orders and judgment reversed.
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132 N.W.2d 539, 26 Wis. 2d 410, 1965 Wisc. LEXIS 997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-conway-wis-1965.