ELSE, Appellant,
vs.
CANNON and others, Respondents.
Supreme Court of Wisconsin.
December 3, 1953. December 30, 1953.*512 For the appellant there was a brief by Brendemuehl & Brendemuehl of Oconomowoc, and oral argument by Alvin G. Brendemuehl.
For the respondents there was a brief by George A. Hartman, Robert G. Hartman, and Leo C. Hartman, all of Juneau, and oral argument by Leo C. Hartman.
GEHL, J.
Plaintiff contends that when the purchasers surrendered their equitable interest in the real estate to the vendors, the holders of the legal title, a merger resulted, and that in this action to foreclose his lien he may reach both interests and require their sale for satisfaction of his claim.
The question presented is dealt with in two prior decisions of this court. Milwaukee Loan & Finance Co. v. Grundt, 207 Wis. 506, 242 N.W. 131, and Delap v. Parcell, 230 Wis. 152, 283 N.W. 305. The facts appearing in those cases are quite similar to those considered here. Out of these earlier cases we read the following:
1. Where an equitable title and a legal title reach the same person after some other interest has attached itself to the equitable estate, a merger is not presumed.
2. An intent to merge must be proved (no such intent is established in the instant case).
3. If a purchaser under a land contract has any equity when he surrenders to the vendor, the equity continues to exist after the surrender to the extent that some other intervening attached interest is not cut off by the surrender.
4. If a purchaser still has an equity after surrender, only such equity can be sold in proceedings brought to enforce *513 the interest of another which has attached between the date of the contract and the surrender.
5. The court may determine from the evidence the value of the premises and the amount due under the land contract and whether at the time of trial and after surrender the purchaser has any equity left.
In Peters v. Bossman, 184 Wis. 254, 199 N.W. 65, it was held that the vendor's knowledge that the work of the intervening claimant was being done is immaterial.
Applying the rules cited it follows that the plaintiff may have a sale in his foreclosure action but that only the equity which the purchasers had at the time of the surrender may be sold.
By the Court.Judgment reversed. The cause is remanded for further proceedings in accordance with this opinion.