#### Koepke, Respondent, vs. Winterfield, Appellant.

*November 12*

November *28, 1902.*

*Deeds: Covenant of seisin: Breach: Cause of action: False representations: Pleading: Joinder of causes of action.*

.1. In an action against a vendor for breach, of his covenant of seisin the complaint, among other things, alleged that the vendor never had possession, actual or constructive, of the land conveyed, nor any title or interest therein, and that other persons named had the title in fee simple and lawful right *to*the land under recorded tax deeds. *Held,*that a cause of action for breach of the covenant of seisin was stated, although tax deeds do not always divest the title of the original owner.

■2. In such case where the cause of action alleged is not for rescission of the conveyance, but for damages for breach of the covenant of seisin, the plaintiff need not allege a reconveyance or an offer to reconvey the land.

:3. Where a complaint attempts to state two causes of action, and the facts in either are insufficient to constitute a good “Separate cause of action, a demurrer will, not lie for misjoinder.

4. In an action against a vendor for false representations in the sale of land, the complaint, among other things, alleged that the representations as to title were made with intent to defraud the plaintiff; that she, relying thereon, conveyed her house and lot to defendant in exchange for the land, and that the vendor knew, at the time, of outstanding tax deeds, ownership and title. *Held,*that the pleading stated facts sufficient to constitute a cause of action for damages for the alleged fraud.

3>. Under sec. 2647, Stats. 1898, providing that plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated legal -or equitable, or *45both, where they arise out of the same transaction, or transactions connected -with, the same subject of action, an action-against a vendor for breach of his covenant of seisin may be joined with an action against him for false representations in. the sale of the same land.

Appeal from an order of tlie circuit court for Milwaukee-county: Lawrence W. Halsey, Circuit Judge.

*Affirmed.*

This is an appeal from an order overruling a demurrer to-the complaint alleging two causes of action. The first cause-of action is to the effect that in consideration of the conveyance of a house and lot, described, to the defendant (with an incumbrance thereon), of the value of $800, the defendant executed, acknowledged, and delivered to the plaintiff a warranty deed, with full covenants, of 160 acres of land, described, Jannary 15, 1901; that the land was at the time wild: and unoccupied, and the defendant was not and never had' been in the actual or constructive possession thereof, and' had no title nor interest in or to the same or any part thereof, but, at the time of the execution and delivery of such deed, the title and possession of the land and every part thereof was vested and held and owned by other parties, as therein alleged; that the defendant had full knowledge of the existence of such outstanding title and possession at the time he so in form conveyed to the plaintiff, and that, by reason of the facts stated, the plaintiff had suffered damages in the sum-of $800, for which amount, with interest from January 15,. 1901, judgment is demanded. The second cause of action alleged is to the effect that the defendant obtained from the-plaintiff the deed of the house and lot mentioned by falsely and fraudulently representing to the plaintiff that he was the owner of, and had the title in fee simple to-, the 160 acres of land described, that the same was of the value of $800 when in fact its value did not exceed $150, and that the same was free and clear from all incumbrances. That the plaintiff,, relying upon and believing such representations to be true, conveyed the house and lot to- the defendant, and received in. *46■•exchange the said warranty deed of the 160 acres mentioned. That the defendant was not at the time the owner in fee simple of the 160 acres of land, and had no title thereto nor interest therein, bnt that the title thereof was January 15, 1901, in the parties named in the other cause of action, and "had been for more than two1 years; and further reiterated the allegations of the first cause of action, and alleged damages to the plaintiff in the sum of $800, and prayed judgment -for that amount, with interest from January 15, 1901.

The demurrer to the complaint is based upon the following ^grounds: (1) That several causes of action have been improperly united; (2) that the first cause of action alleged does not state facts sufficient to constitute a cause of action; .(3) that the second cause of action stated does not state, facts sufficient to constitute a cause of action; (4) that the complaint does not state facts sufficient to constitute a cause of action.

For the appellant the cause was submitted on the brief of *INye & Mode. -*

*F. W.*Houghton, for the respondent.

Cassoday, O. J.

Fothing need be said as to the fourth -ground of demurrer. The complaint only attempts to state .two separate causes of action. There is no pretense that the * complaint, as a whole, states any other cause of action.

2. The contention that the facts alleged are insufficient'to -constitute a cause of action for a breach of the covenant of -seisin is without foundation. The-fact that tax deeds do not •always divest the title of the original owner is without significance, since it is alleged that the defendant never had the -.actual or constructive possession, nor any title nor interest '.in the land, and that the other persons named had the title "in fee and lawful right to the land under recorded tax deeds. The defendant further contends that the allegations fail to -state a cause of action because it is not alleged that the plaint*47iff bas reconveyed or offered to reconvey to Mm the land described in the deed to the plaintiff. The alleged cause of action is not for rescission of the conveyance, but for damages for the breach of the covenant of seisin. In such an action, it is said by a standard text-writer:

> “As respects the pleadings in an action upon this covenant, it has been settled from an early period that in assigning the breach of the covenants for seisin and of good right to convey it is unnecessary to do more than negative the words of the covenant generally.” Eawle, Covenants (5th ed.) § 61.

> “As a consequence of this, it is well settled that in an action on the covenant for seisin it is unnecessary either to aver an eviction in the declaration or lay any special damage.” Id. § 62.

It was held by this court long ago:

> “In an action for a breach of covenant of seisin, the burden is upon the defendant to show his title, and not upon the plaintiff to show the want of it.” *Beckmann v. Henn,*17 Wis. 412; *Mecklem v. Blake,*16 Wis. 102.

So this court has since held:

> “If a grantor assumes to convey with full covenants of warranty unoccupied lands to which he has no title, there is at once a constructive eviction of the grantee which entitles him to the same remedies that he would be entitled to had he 'been turned out oí the actual possession of the land by legal process.” *McInnis v. Lyman,*62 Wis. 191, 194, 22 N. W. 405, 406. To the same effect, *Nichol v. Alexander,*28 Wis. 118; *McLennan v. Prentice,*77 Wis. 124, 128, 45 N. W. 943; *Wallace v. Pereles,*109 Wis. 316, 323, 85 N. W. 371.

We must hold that the facts alleged are sufficient to constitute a cause of action for the breach of the covenant of •seisin.

3. If, as contended by the defendant, the second cause of ■action fails to allege facts sufficient to' constitute a cause of action, then there is no ground for claiming that several •causes of action have been improperly united. It is only where the complaint states two or more good causes of action That a demurrer will lie for misjoinder. *Bassett v. Warner,**4823 Wis. 673; *Truesdell v. Rhodes,*26 Wis. 215; *Willard*v. *Reas,*26 Wis. 540; *Lee v. Simpson,*29 Wis. 333; *Schiffer v. Eau Claire,*51 Wis. 385, 8 N. W. 253; *Hiles v. Johnson, 67*Wis. 517, 30 N. W. 721. But we are constrained to liold that the second cause of action does allege facts sufficient *to*constitute a cause of action for damages for the alleged fraud. It is-alleged that the false representations were made with intent to defraud the plaintiff, and that she, relying thereon and believing the same to be true, conveyed her house and lot to the-defendant, and that the defendant knew at the time of such-outstanding tax deeds and ownership and title.

4. The remaining question is whether the two causes *of*action are improperly united. The statute declares that “the-plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated' legal or equitable, or both, where they arise out of: (1) the same transaction or transactions connected with *the*same subject of action.” Sec. 2647, Stats. 1898. It is very clear that the two causes of action both arose out of the same transaction, — the exchange of the house and lot for the wild and unoccupied land. The case comes within the principle of the recent rulings of this court, wherein it was, in effect, held that “a cause of action for the wrongful withholding of leased' premises after notice of intention to quit, . . . and a cause of action for the wrongful conversion of personal property included in the same lease, by failure to deliver it to the-lessor as therein provided, may be joined, . . . since they ‘arise out of the same transaction or transactions connected with the same subject of action.’ ” *Alliance E. Co. v. Wells,*93 Wis. 5, 66 N. W. 796, as explained in *State ex rel. Alliance R. Co. v. Helms,*101 Wis. 280, 283, 284, 77 N. W. 194; *Endress v. Shove,*110 Wis. 133, 139, 85 N. W. 653.. We must hold that the two causes of action were properly united.

*By the Court.*— The order of the circuit court is affirmed..