
    Falkner, Respondent, vs. Woodard and wife, Respondents, and Hackett, interpleaded, Appellant.
    
      November 7
    
    November 24, 1899.
    
    
      Deeds: Covenants: Quiet enjoyment: Failure of title.
    
    
      A. grantee of land who went into possession under a deed containing only a covenant for quiet possession and has remained in possession ever since cannot defend against a mortgage given by him to secure a part of the purchase price, or obtain a deduction from the amount due thereon, on the ground that the grantor did not have title to a part of the premises.
    Appeal from a judgment of the circuit court for Wauke-sha county;: James J. Dick, Circuit Judge.
    
      Bmersed.
    
    For the appellant there was a' brief by Eaton dk Lewis, and oral argument by II. L. Eaton.
    
    
      O. E. Armin, for the respondents Woodard.
    
   Cassoday, C. J.

This action was commenced May 29, 1891, to foreclose a note and mortgage for $1,258.60, given March 21, 1896, by the defendant Woodard and wife to the ■defendant Thomas A. Haelcett as a part of the purchase price ■of the premises described. On April 12, 1891, Haelcett assigned the note and mortgage to the plaintiff as collateral security for the payment of $200 and interest. The complaint is in the usual form. Woodard answered to the effect that Haelcett had no title to a portion of the premises, and that he was induced to make the purchase on the misrepresentation of Haelcett that he was the owner of all the premises. Haelcett was interpleaded, and took issue with the ■allegations of Woodard's answer, and upon the trial of the issues so formed the court found as matters of fact¿ in effect, that January 17, 1896, Haelcett and Woodard entered into a written contract by the terms of which Haelcett agreed to sell and convey by warranty deed, with full covenants, all the premises described, and for which Woodard agreed to pay him S3,000, possession of the premises to be given on or before April 1, 1896; that March 21, 1896, Haokett found it to be impossible to oust the tenant or tenants then in possession of the premises, and so Haokett then and there agreed with Woodard to throw off from the purchase price $500, and Woodard then and there agreed to accept the preinises with the tenants then'in possession, and assume the responsibility of securing possession from such tenants, by which agreement the purchase price of the premises was then and there fixed at $2,500, and a deed was duly executed, conveying to Woodard the premises; that at the same time — March 21, 1896 —Woodard paid to Haokett a part of the purchase price, and gave back to Haokett the note and mortgage in suit for $1,258.60, the agreed balance of the purchase price remaining unpaid, and which mortgage was recorded April 14, 1896; that Woodard thereupon obtained and went into possession of the premises under his deed, and paid to Haokett the first semi-annual instalment of the interest on the note secured by the mortgage; that thereafter Woodard discov-e: ed that Haokett had no title to a portion of the premises described; that, prior to the making of the contract, Haokett fraudulently represented to Woodard that he was the owner of all the premises described in his deed to Woodard, and had good right to convey the same, and that the same contained 13.86 acres of land, and that Haokett furnished an abstract showing such title; that in truth and in fact Haokett did not own and had no title to a part of such lands described; that Woodard -relied upon such representations by Haokett; that the value of the land actually conveyed by Haokett to Woodard was $1,500; that the damage sustained by Woodward by reason of such fraud and misrepresentations was $1,000, with interest thereon from March 21, 1896, at six per cent.; that Woodard was entitled to a diminution of the amount nominally due on the note and mortgage to the amount last mentioned; that April 12, 1897, the note and mortgage were assigned by Haclcett to the plaintiff as collateral security for the payment of $200 and interest.

And as conclusions of law the court found, in effect, that the plaintiff was entitled to judgment of foreclosure and sale of the mortgaged premises, and that there was due thereon to him $200 and interest at eight per cent, from April 12, 1897, together with his costs and disbursements out of the judgment; that the whole amount nominally due on the note and mortgage was $1,361.37, from which Woodard was entitled to a deduction by reason of such failure of title of $1,110.35; and ordered judgment to be entered accordingly. Erom the judgment so entered Hackett brings this appeal.

It is expressly found that, upon Wooda/rd's receiving the deed and giving back the note and mortgage, he obtained and went into the possession of the premises under the deed, and paid the first instalment of interest on the note and mortgage. There is no pretense that Woodard was ever ousted from shch possession. This court has frequently held, in effect, that the grantee in a deed with full covenants, who took possession of the premises at the time of the conveyance, and remains in undisturbed possession, cannot defend an action to foreclose a mortgage executed by him on such premises to secure notes for a portion of the purchase money on the ground that his grantor had no title to the land. Taft v. Kessel, 16 Wis. 273; Ludlow v. Gilman, 18 Wis. 552; Bardeen v. Markstrum, 64 Wis. 615; McLennan v. Prentice, 85 Wis. 427. See, also, Mecklem v. Blake, 22 Wis. 495; McIndoe v. Morman, 26 Wis. 588; Oakes v. Buckley's Estate, 49 Wis. 600; Smith v. Hughes, 50 Wis. 620; Clementson v. Streeter, 59 Wis. 429. The ground upon which these decisions rest is that, the vendee being in the undisturbed possession, which may ripen into a perfect title, it cannot be assumed with any certainty that he has suffered, or ever will suffer, any actual damage by reason of such want of title. But in the ease at bar it is unnecessary to go to that extent, or to pass upon that question, since the only covenant contained in the deed from Hachett to Woodard, was that the bargained premises, in the quiet and peaceable possession of ” the latter, his heirs and assigns, against all and every person or persons he ” would “ forever warrant and defend, free and clear of all incumbrances except one mortgage of $800 and one mortgage of $100,” which Woodard thereby assumed and agreed .to pay; It is undisputed that Wooda/rd has remained in possessi&n ever since the delivery of that deed, and hence there is no breach of the covenant mentioned. It follows from what has been said that the trial- court improperly allowed a deduction of $1,000 from the purchase price upon the facts found.

By the Oov/rt.— The judgment of the. circuit court is reversed, and the cause is remanded for further proceedings according to law.  