Smith v. Hughes
Wisconsin Supreme Court
APPEAL from the Circuit Court for Winnebago County. Action for an unpaid balance of the purchase price of land sold and conveyed by plaintiffs to defendant with full covenants of warranty. The answer, by way of counterclaim, first alleged entire failure of title in the plaintiffs, offered to recon-vey, and demanded á rescission of the contract; and secondly it claimed damages for breach of the, covenants of seizin and title. There was a reply in denial.
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APPEAL from the Circuit Court for Winnebago County. Action for an unpaid balance of the purchase price of land sold and conveyed by plaintiffs to defendant with full covenants of warranty. The answer, by way of counterclaim, first alleged entire failure of title in the plaintiffs, offered to recon-vey, and demanded á rescission of the contract; and secondly it claimed damages for breach of the, covenants of seizin and title. There was a reply in denial. The court found the following facts: The plaintiff Hiram B. Smith went into possession of the premises July 9, 1868, under a warranty deed of…
1Opinion of the CourtObtokt, J.
The counterclaims of the defendant, for a rescission of the bargain and for damages, are predicated upon the breach of the covenant of seizin in the deed of the respondents, executed and delivered in July, 1872. It is too well settled that only executory contracts can be rescinded, to require discussion. This method of relief is the converse of specific performance, and in its very nature can have application only to executory contracts; and this court has settled the question beyond controversy, by repeated decisions. In direct application to this case, it is held in Booth v. Ryan, 31 Wis.,…
2Cases cited11 opinions
- Kutz v. McCuneWisconsin Supreme Court · 1868
- Ellis v. WelchMassachusetts Supreme Judicial Court · 1810
- Taft v. KesselWisconsin Supreme Court · 1862
- Mecklem v. BlakeWisconsin Supreme Court · 1868
- Eaton v. LymanWisconsin Supreme Court · 1872
6 more not listed; retrieve them via the Exa API.
3Cited by23 opinions
- McLennan v. PrenticeWisconsin Supreme Court · 1893
- Messer v. OestreichWisconsin Supreme Court · 1881
- VanNess v. Royal Phosphate Co.Supreme Court of Florida · 1910
- Milwaukee & Northern Railroad v. StrangeWisconsin Supreme Court · 1885
- Wisconsin Central Railway Co. v. SchugWisconsin Supreme Court · 1914
18 more not listed; retrieve them via the Exa API.