125 Wis. 565 | Wis. | 1905
The plaintiff brings this action, demanding that the title acquired by him to the lands in question be confirmed, that he be declared the owner in fee, and that it be decreed that the defendants have no interest in the lands, and that they be barred from exercising the rights of ownership and possession which they assert and seek to maintain. The facts alleged by the plaintiff are sufficient to constitute a cause of action in the nature of a suit in equity to remove the cloud upon the title which he claims to own, and which, if found valid, makes him the owner in fee of the lands and gives him the right to the possession thereof. As stated in Pier v. Fond du Lac, 38 Wis. 470:
“The remedies given in such action are broad and ample. To give effectual relief the court will decree the reformation, surrender, or cancellation of deeds and other instruments affecting the title, or the reformation or cancellation of records and the execution of deeds and releases. In short, it possesses power to decree adequate relief and to enforce full execution of its judgment.” - -
Other cases holding that such a bill may be maintained are collected in Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974.
B. K. Boyd, as purchaser at an execution sale in April, 1901, under a judgment against H. C. Ellis, secured a sheriff’s deed of the premises in July, 1902. A quitclaim deed of the interest thereby acquired was made by B. K. Boyd and wife to this plaintiff on August 17, 1903. On the trial of the issues the court found that plaintiff had acquired no title or
But it is claimed that, since be obtained that judgment by purchase from Whereatt, who was plaintiff in both tbe original and tbe garnishment actions, be is bound by such finding in tbe garnishment action as a privy. Tbis claim we do not •consider well founded. To constitute privity as here asserted it must appear that there was a mutual or successive relation-■sbip to tbe right of property affected by tbe judgment which was assigned to tbis plaintiff.
“It is only when tbe particular property or right which has been transferred has been affirmatively shown to have been tbe subject matter of tbe former litigation, and its status ■settled thereby, that tbe effect of tbe litigation is conclusive upon a grantee or transferee of tbe property.” Grunert v. Spalding, 104 Wis. 193, 225, 80 N. W. 589, 590.
“In the doctrine of res adjudícala, privity extends no farther than tbe particular subject matter or property, tbe status •of which was determined by tbe judgment as to that particular thing. . . . Tbe mere personal effect of tbe judgment, however, is absolutely confined to tbe parties to tbe litigation. It does not attach to and become a rule of property as to any ■other thing than tbe particular subject of tbe controversy, which was closed by the judgment.” Hart v. Moulton, 104 Wis. 349, 354, 80 N. W. 599, 600.
Tbe plaintiff in tbe instant case, as assignee of tbe judgment in tbe original action, became successively related to tbe rights of property which were determined by tbe judgment •so assigned to him. Tbe questions involved and litigated in
Appellant directs our attention to the testimony bearing on the finding of fact that the relationship of mortgagor and mortgagee did not exist between the defendant J. F. Ellis and his father as to the lands in controversy, and asserts that there is such a conflict in the evidence of J. F. Ellis in his action and his evidence in other actions on this question as to make his evidence in this case incredible. An examination of the evidence does not warrant such an inference. True, there are some discrepancies in his evidence given upon the various examinations in the different actions'. They are, however, of slight importance, and were explained by the witness as mistakes in recollection, resulting from the lapse of time and the complications arising out of the different transactions involved in the litigation. The tidal court would not have been justified in disregarding his evidence in the case. Taking it into consideration with the other evidence in the case, the court had good ground to conclude that the relationship of' mortgagor and mortgagee did not exist, and its finding on this subject cannot be disturbed.
It is contended that, if it be held that the title to this land is in J. F. Ellis as grantee in fee under the deed from Moore, then H. C. Ellis, his father, has acquired such title by adverse possession of the land. The father’s uninterrupted possession and use of the lands for the period of twenty-seven years is admitted. The evidence also shows that he went into possession with the consent of his son and under an agreement to occupy and cultivate the farm for his own benefit, and with the further agreement that the title should be in the son. This possession and use continued under this arrangement up to the time of his death. Nothing indicates that there was any change in the character of the father’s possession. The facts necessary to show a hostile possession do not appear. In so far as the proof characterizes the possession, it is to the effect that the father held and occupied the land under the
Eespondent presented arguments upon a number of questions not covered by the court’s findings and judgment. It •does'not appear that they were considered upon the trial; there were no requests presented to the lower court to find on them, nor are they covered by any exceptions preserved in the record. Under these circumstances we do not feel called upon to consider these questions on this appeal.
By the Gourt. — The judgment is affirmed.