#### Wilcox and others, Appellants, vs. Scallon, Respondent.

*September 15*—

December *6, 1910.*

*Vendor and purchaser of land: Oral contract: Deed in escrow: Oral surrender of vendee’s interest.*

1. Where, pursuant to an oral contract for the sale of land, the vendor executed a deed and deposited it in escrow to he delivered to the grantee on payment of the balance of the purchase money hy a specified date, and the grantee went into possession, no title-*75passed, and the deed had no validity until the condition was fulfilled.

2. In such case the interest which the vendee acquired was at best-only the right to a conveyance on payment of the balance of the-agreed price, and such interest could be and was surrendered by a subsequent oral agreement between the parties, entered into-after default, whereby the sale was rescinded and the purchaser- and his family were to remain upon the land and have the use of the same upon condition that they should pay the taxes and; make improvements thereon.

Appeal from a judgment of tbe circuit court for Sauk county: E. Eat SteveNS, Circuit Judge.

*Affirmed.*

This action was brought to enforce specific performance of' a contract made in January, 1896. Tbe-alleged contract is based upon tbe execution of a deed placed in escrow, to be delivered upon payment of tbe balance of purchase money. It is alleged in tbe complaint that tbe plaintiffs tendered tbe balance due on tbe purchase price and that tbe defendants refused to deliver tbe deed. Tbe prayer is that tbe defendants be required to deliver tbe deed and convey tbe lands to the-plaintiffs and for general relief. Tbe action was originally-commenced against tbe defendant, *William Scallon,*and one-Carpenter, who held tbe deed in escrow, but upon sustaining-tbe demurrer of Carpenter tbe action was dismissed as to him. Tbe answer of defendant, *Scallon,*denies generally the material allegations of tbe complaint, and further sets up that tbe plaintiffs occupied tbe land described in tbe complaint as-tenants of tbe defendant.

Tbe court found: (1) That on January 16, 1896, tbe defendant duly made and executed a quitclaim deed of tbe south-half of tbe northeast quarter of tbe southeast quarter and tbe northwest quarter of tbe northeast quarter of tbe southeast quarter of section 23, town 10, range 3, in said Sauk county, to Thomas J. Wilcox for tbe agreed consideration of $90 ;■ that defendant agreed to accept and did accept as part payment of said purchase price certain cattle delivered to him by-*76•said Wilcox at tbe agreed price of $64; that by an agreement •of tbe parties then made tbe balance of tbe purchase price in tbe sum of $26 was to be paid within three weeks from that date or tbe deal was *to be*off. (2) That said quitclaim deed was delivered in escrow to be held until said $26 was paid in accordance with tbe agreement of tbe parties and was then to be delivered to said Wilcox; that said balance of $26 was not paid within tbe period of three weeks and that tbe same has never beén paid. (3) That after tbe expiration of said three weeks said Wilcox, in failing to pay tbe balance on said land, .gave up bis right to demand a deed therefor; that defendant then agreed with said Wilcox that said Wilcox and bis family might remain upon said land and have tbe use of tbe same upon condition that they should pay tbe taxes upon tbe land •and make improvements thereon. (4) That said Wilcox died intestate in tbe fall of 1903; that the above plaintiffs are bis •only heirs at law. (5) That tbe said Wilcox and tbe plaintiffs as. bis heirs after bis decease remained on said land under ■such agreement, paid tbe taxes thereon, and made improvements thereon in return for tbe use of said land. (6) That tbe logs taken from said land by tbe defendant during tbe time that tbe plaintiffs have occupied it belonged to and were tbe property of tbe defendant. (7) That the services of tbe plaintiff *William B. Wilcox*in attempting to clear land for tbe defendant were of no value; that such land was in fact never cleared by him.

And as conclusions of law tbe court found: (1) That tbe plaintiffs are not entitled to a delivery of tbe deed deposited in escrow nor to a conveyance of said land from tbe defendant. (2) That plaintiffs are not entitled to recover any sum for logs taken from tbe premises in question by tbe defendant, nor for tbe clearing alleged to have been done on defendant’s land. (3) That tbe defendant recover bis costs and disbursements to be taxed according to law.

J"udgment was entered accordingly, from which this appeal was taken.

*77*Albert Wood,*attorney, and *F.*W. *Hall,*counsel, for tbe appellants.

Eor tbe respondent there was a brief by *Grotophorst, Evans- <& Thomas,*and oral argument by *E. A. Evans.*

Tbe following opinion was filed October 4,1910:

BjeewiN, J.

Tbe findings of tbe court below are attacked by tbe appellants, and they say in tbeir brief that tbe only question in tbe case is, Did Tbomas J. Wilcox, in failing to. pay tbe balance on the land, give up bis right to tbe deed, and was a new arrangement made ? Tbe findings are set out in tbe statement of facts and there is ample evidence to support them. Tbe material question for consideration, therefore, is whether upon tbe findings thus made tbe appellants were entitled to judgment. It is argued by appellants that tbe respondent, *Scallon,*could not have reclaimed tbe land in any event without tendering back tbe property received, because tbe relation of vendor and vendee existed under the contract, and tbe appellants, having gone into possession under tbe agreement, acquired an interest in tbe land. But tbe deed was deposited in escrow, and no title passed or was h> pass until payment of tbe balance due within tbe period prescribed by tbe agreement. This payment was not made, and upon default it was competent for tbe parties to make the-agreement which they did, by tbe terms of which tbe deal was declared off and Wilcox was to remain in possession as tenant of respondent.

It is doubtless true that, bad no new agreement been made between the parties after default, Wilcox would have bad such an interest as would have entitled him to redeem on tender of tbe balance of tbe purchase money. But tbe new agreement deprived him of that right if such agreement was valid. But it is insisted by appellants that tbe interest of Wilcox was such as could only be surrendered by an instrument in writing, or by act or operation of law under see. 2302, Stats. (1898), which provides that “No estate or interest in *78lands . . . shall be . . . surrendered . . . unless by act or •operation of law or by deed or conveyance in writing, subscribed by the party . . , surrendering . . . the same.” But the interest which the appellants acquired by virtue of part payment and getting into possession was at best only the right to a conveyance on payment of balance of the agreed purchase price. No title passed to them, therefore such interest could be surrendered by oral agreement of the parties, ■and especially when the agreement was executed. *Telford v. Frost,*76 Wis. 172, 44 N. W. 835; *Maxon v. Gates,*112 Wis. 196, 201, 88 N. W. 54; *Hutchins v. Da Costa, 88*Wis. 371, 60 N. W. 427; *Goldsmith v. Darling,*92 Wis. 363, 66 N. W. 397; *Lovejoy v. McCarty,*94 Wis. 341, 68 N. W. 1003; *Strain v. Gardner,*61 Wis. 174, 21 N. W. 35. In *Telford v. Frost*and *Maxon v. Gates, supra,*it was held that the relation of vendor and vendee under a land contract can be ■changed without an instrument in writing. The case at bar is a stronger case in favor of the respondent, because the •deed had no validity until delivered.

But it is insisted that the findings are not supported by the •evidence. It is true that because of the death of Wilcox much evidence respecting the transaction between the parties which would have been admissible had he lived was rendered inadmissible. However, there is sufficient evidence in the record by way of admission of the deceased to several parties, as well as other facts and circumstances proved, which amply support the findings of the court below. We think the findings are well supported by the evidence and support the judgment.

*By the Court.*— The judgment of - the court below is affirmed.

'A motion for a rehearing was denied December 6, 1910.