113 Wis. 607 | Wis. | 1902
The following opinion was filed January 28, 1902:
There is no certificate that the bill of exceptions contains all the evidence. There is, however, at the close
Plaintiff claimed title under certain land contracts from Mary A. (Stewart) Haskins, and a deed executed by her executor under tbe direction of tbe county court. Tbe land contracts were in the ordinary form, in wbicb tbe grantor covenanted to convey title by “a good and sufficient deed” free from all incumbrances except taxes. Tbe deed recites the contract, and that it was made pursuant to a judgment of the •county court directing a conveyance according to tbe terms thereof. Tbe granting clause in tbe deed purports to convey “all tbe right, title, and interest of tbe said Mary A. Has-kins, deceased, in and to tbe said real estate.” The defendant
The defendant further complains that the court excluded evidence as to the rents and profits which were properly a set-off against plaintiff’s recovery. To get this matter properly in mind, it will he necessary to refer somewhat to matters of history shown in this case. Thomas Stewart died in 1882, leaving a will in which he devised the use of his real and personal estate to his widow for life, provided she remain single, with a trust over for the benefit of the parties represented by the defendant. On June 2, 1887, the widow remarried. August 9, 1893, she made her first contract to sell the land to plaintiff, who then went into possession thereunder. Plaintiff’s deed was made July 19, 1897. January 10, 1898, defendant brought this action of ejectment, claiming the right to recover possession and for rents and profits. July 23, 1900, judgment was entered in his favor for a recovery of possession, for $999.17 for rents and profits, and $325.11 costs. Under sec. 3082, Stats. 1898, defendant might have recovered for rents and profits of the premises during the time they were withheld by the plaintiff, not exceeding six years prior to the commencement of the action, or from January 10,1892. The defendant first offered evidence, which was rejected, of the rental value of the land from January 10, 1892, to June 19, 1897, the date when plaintiff secured his deed from Mrs. Haskins’ executor. The defendant now claims that the coprt in the ejectment action only allowed him such rents and profits from the date last mentioned to the date judgment was rendered, and that he should now he permitted to cover the period mentioned in this action, and offset such rents against the plaintiff’s recovery. In the first place, it is impossible to tell from the evidence with any degree of certainty for what period the court in the ejectment action allowed a recovery for rents and profits. The defendant was entitled to claim
Defendant is further dissatisfied with tbe ruling of the court below on tbe question of plaintiff’s good faith in making bis improvements. lie argues against tbe validity of tbe “improvement act” with all tbe vigor and gravity as though it was an open question in this state. We do not so consider it. Pacquette v. Pickness, 19 Wis. 219 (decided in 1865), considered tbe question, and says:
“Similar acts have been in force in many of tbe states for more than half a century, and have been so uniformly held constitutional tbat we consider ourselves bound by tbe great weight of authority in their favor.”
Tbat decision has been acquiesced in for more than thirty-five years, and many cases have since been determined, recognizing tbe conclusion there stated. In this instance we feel entirely at liberty to continue to adhere to tbe alleged errors
After the special verdict had been drawn some question seemed to have arisen whether plaintiff was entitled to improvements made by him while he had the land under contract. The verdict as originally drawn required the jury to find the value of the improvements from the date of his first contract to the, date of the ejectment judgment. As a matter of precaution, a question was added to the verdict asking the jury to separately find the value of the improvements made by the plaintiff from the date of the contract to the date he obtained his deed. The jury found such value to be
By the Court. — The judgment is affirmed.
A motion for rehearing was denied April 1, 1902.