Ellis vs. Southwestern Land Co.

question, because, as he says, the corporation had concluded to let Mrs. Ellis have it. Let it be admitted that the lease was turned over at that time to effect the purposes testified to by Allen, the fact that no act was considered necessary to carry out such purpose, except to deliver the lease, is inconsistent with the theory that it was then supposed by any one connected with the transaction that the title to the real estate was in the corporation. It is consistent only with the theory that it was supposed the title was in Ellis and the idea was not to convey anything to Ellis for his wife, but to release him from any obligation as to the property in question under his general transfer to the corporation. It seems that there is ample evidence to sustain the findings of fact as made by the trial court at every point.

We

It is said that plaintiff lost his right by laches. know of no rule of estoppel by laches applicable to the facts of this case. The action was brought very soon after the discovery of the mistake. Plaintiff did not sleep on his rights. There is no evidence to warrant a claim that plaintiff was negligently ignorant of the situation. The corporation was not prejudiced by the delay in any way. It does not appear that it incurred any expense or was a loser to any extent by reason of plaintiff's asserting his rights at the late day instead of soon after the transfer by J. F. Ellis to it. Mere delay, within the statutory period for relief at law, does not preclude a recovery in equity, and at most that is all which appears here. Knowlton v. Walker, 13 Wis. 264. If delay were shown and in the meantime a change in the situation of the parties or the property, so that it would be unconscionable on that account to allow plaintiff at the late day to successfully assert his claim, the question would be different. There is no ground for saying that defendant was prejudiced by laches of plaintiff, or to show that plaintiff was precluded from recovering under the statute of limitations pleaded in the answer. Defendant relied on the

Ellis vs. Southwestern Land Co.

ten-year statute (R. S. 1878, sec. 4215). That applies only to an adverse possession of ten years. The possession here was not adverse, but by agreement. The possession of J. F. Ellis from beginning to end was the possession of plaintiff. Such a possession, however long continued, will not ripen into title. Lampman v. Van Alstyne, 94 Wis. 417.

There is a contention that defendant was a purchaser for value without notice. The answer to that is that the court found the facts to be, in substance, that the corporation neither paid anything for the property, nor intended to, but obtained the title through mistake.

It is further contended that there was at least something due J. F. Ellis on the property from plaintiff, and that a recovery should not have been had by plaintiff except on condition of payment to the defendant of any sum due J. F. Ellis. The trouble with that is: First, the court found that nothing was due J. F. Ellis from plaintiff, which we see no reason for disturbing; and, second, the corporation delivered the lease of the property to J. F. Ellis after he severed his connection with the corporation, intending to relinquish any claim to the property, which, as before stated, must have referred to any claim under the general transfer which Ellis made in consideration of the corporation paying the indebtedness for which he was liable. That, of course, left the corporation without any interest in the property even of the character of an indebtedness of plaintiff to J. F. Ellis if such indebtedness existed.

The foregoing covers all points made in the appellant's brief which are considered of sufficient significance to call for special mention, and requires an affirmance of the judg

ment.

By the Court.-The judgment is affirmed.

Ellis vs. The Southwestern Land Co.

ELLIS, Appellant, vs. THE SOUTHWESTERN LAND COMPANY, Re

spondent.

February 22-March 14, 1899.

Equity: Adequate remedy at law: Rescission of contract: Accounting: Vendor's lien.

1. A complaint alleged that the defendant corporation, in consideration of plaintiff's relinquishment to it of all his interest as a stockholder and the conveyance to it of personal property, agreed to pay certain debts owing by plaintiff, and that it had failed and refused to pay a part thereof. It did not allege insolvency of the defendant or facts entitling plaintiff to a rescission of the contract. It prayed for an accounting and that defendant be required to reconvey. Held, that a general demurrer was properly sustained on the ground that the remedy at law for the breach of the contract was complete and adequate.

2. Where, in consideration of the transfer of property to him, a person has agreed to pay certain debts of the vendor, his failure to pay a part of them does not entitle the vendor to a rescission of the contract.

3. An action for equitable relief cannot be sustained on the ground that it may prevent a multiplicity of actions, where no facts are alleged to show that such will be the result.

4. To sustain a suit in equity for an accounting, some special and substantial ground of equity jurisdiction must be alleged, and it must appear that the remedy at law is inadequate.

5. In an action for an accounting and to compel a reconveyance of property on the ground that defendant had failed to pay debts of plaintiff which it had assumed in consideration of the transfer, equity will not take jurisdiction on the ground that plaintiff has a vendor's lien on land sold, where it appears that the land was conveyed prior to the making of the contract in question and was not a part of its consideration.

APPEAL from an order of the circuit court for Eau Claire County: JAMES O'NEILL, Circuit Judge. Affirmed.

Action for an accounting and to compel a reconveyance of property. The substance of the complaint is stated in the opinion. The appeal is from an order sustaining a general demurrer.

Ellis vs. The Southwestern Land Co.

For the appellant the cause was submitted on the brief of Frederick A. Teall.

For the respondent there was a brief by Wickham & Farr, and oral argument by James Wickham.

BARDEEN, J. The demurrer to the plaintiff's complaint was sustained in the court below on the ground that it appears therefrom that he has an adequate remedy at law. This ruling must be sustained unless we can say that sufficient facts had been stated to warrant us in concluding that the action can be maintained in equity. The grounds urged for our consideration to support the complaint are: (1) That this action may prevent a multiplicity of suits; (2) that an accounting is demanded; (3) that the contract in question creates an equitable lien upon the defendant's property, which only a court of equity can determine and foreclose.

There can be no doubt but that the pleader has attempted. to state a cause of action in equity. With some considerable particularity of detail it is alleged, in substance, that the plaintiff was at one time the owner of a large amount of real and personal property; that in the year 1887 plaintiff caused the defendant company to be organized, and conveyed to it all his real estate, and was to receive 366 shares of the capital stock in payment therefor; that he remained the owner of said stock until September, 1893, when, owing to some disagreement with the other members of the company, he made a proposition to sell out his interest in the company, and convey to it all his real estate and personal. property, except certain reservations mentioned, in consideration that the defendant would pay and save him harmless from certain debts and obligations, some forty-eight in number, a list of which was attached to his said proposition; that the defendant accepted said proposition, and plaintiff accordingly sold his personal property to defendant, and relinquished to it all his interest as a stockholder; that the

Ellis vs. The Southwestern Land Co.

defendant has failed to comply with its agreement to pay the debts mentioned in certain particulars mentioned, and that by reason thereof plaintiff has been compelled to pay thereon the sum of $4,885.74; that defendant has neglected and refused to pay "certain other items of indebtedness which it assumed and agreed to pay as aforesaid,— the particular items, or the amounts due thereupon, or to whom the same are due and payable, the plaintiff is unable to state; " that defendant paid no consideration for the stock and property transferred to it except the sums it has paid in discharge of certain of the obligations it assumed, the amounts of which plaintiff is unable to state. The demand for relief is for an accounting, and that defendant be required to reconvey to plaintiff the property received from him, with his interest in the company, and, if the company is unable to so reconvey them, that plaintiff recover his damages.

Giving to the complaint the widest latitude of construction possible, it seems very clear that the plaintiff has a complete and adequate remedy at law for a breach of the contract. It is not alleged that the defendant is insolvent, nor are there any facts stated which would entitle the plaintiff to a rescission of the contract. It appears from the complaint that defendant agreed to pay some $43,000 of the plaintiff's debts. So far as the facts stated in the complaint go, the defendant has failed to pay less than $5,000 of this. amount. The general rule is that, to justify a rescission, the failure of the opposite party to perform must be total, so that the object of the contract has been defeated, or rendered unobtainable, by reason of the misconduct or default of the other party. Topping v. Parish, 96 Wis. 378. The contention that this action may prevent a multiplicity of suits hardly merits sober consideration. No facts are alleged which show that would be the result, and we are not at liberty to speculate on the possibilities of the future. Neither