Ellis v. Southwestern Land Co.

102 Wis. 400 | Wis. | 1899

Marshall, J.

The assignments of error go mainly to whether the findings of fact are contrary to the clear preponderance of the evidence. We do not deem it advisable to discuss the evidence at any great length for the purpose of supporting the conclusions at which we have arrived. It may be admitted that the situation of plaintiff in regard to the title to the property in question is in many respects inconsistent with the claim that it belonged to him and was conveyed to the son J. E. Ellis to secure the latter for advances made to discharge incumbrances thereon to the amount of $600; but the facts in that regard are supported by the direct and positive evidence of the two Ellises, being all the direct evidence on the subject, and we are unable to say that the trial court’s decision as to where the truth lies is wrong. The same may be said as to all the facts requisite to sustain the judgment. Starting with the fact that the property was that of the plaintiff, the subsequent occurrences as found by the court below are all reasonable wben viewed in tbe light of attending circumstances, and are in accord with the direct evidence of the two Ellises, and in many respects of Allen, who testified on behalf of the defendant, and in fact all the direct evidence in the case.

On the question of mistake it appears that the property which J. R. Ellis intended to put into the corporation, and which Allen supposed was to be put in, was that which had accumulated in Ellis’s real-estate operations, not property which he merely held in trust for others. J. R. Ellis, as president of the corporation, made the agreement for the transfer of property with J. R. Ellis, both as to the particular property to be transferred and the consideration therefor. He testified that the real estate in question was not included in the agreement. True, after the conveyance there were occurrences indicating that such property was understood to be corporate property, yet they were not inconsistent with its being property of another, administered by the corporation in the capacity of agent, while during the same time there were many occurrences entirely inconsistent with any other theory than that the legal title to the property was in J. R. Ellis. This refers to his having mortgaged the property several times to secure his individual indebtedness, and with the knowledge of Allen, who was the only other person interested in the corporation. Again, when Ellis ceased to office with the corporation, the conduct of Allen, who then represented the corporation, was inconsistent with the legal title to the property being otherwise than as claimed by Ellis. He had made an assignment of all his property to the corporation in consideration of an agreement on its part to pay certain liabilities for which he was responsible. No deed, so far as appears, conveying real estate, was made pursuant to that agreement, yet long after the transfer by Ellis was consummated Allen, for the corporation, handed Mr. Ellis the lease of the property in question, because, as be says, the corporation bad concluded to let Mrs. Ellis have it. Let it be admitted that the lease was turned over at that time to effect the purposes testified to by Allen, the fact that no act was considered necessary to carry out such purpose, except to deliver the lease, is inconsistent with the theory that it was then supposed by any one connected with the transaction that the title to the real estate was in the corporation. It is consistent only with the theory that it was supposed the title was in Ellis and the idea was not to convey anything to Ellis for his wife, but to release him from any obligation as to the property in question under his general transfer to the corporation. It seems that there is. ample evidence to sustain the findings of fact as made by the trial court at every point.

It is said that plaintiff lost his right by laches. We know of no rule of estoppel by laches applicable to the facts of this case. The action was brought very soon after the discovery of the mistake. Plaintiff did not slhep on his rights. There is no evidence to warrant a claim that plaintiff was negligently ignorant of the situation. The corporation was not prejudiced by the delay in any way. It does not appear that it incurred any expense or was a loser to any extent by reason of plaintiff’s asserting his rights at the late day instead of soon after the transfer by J. E. Ellis to it. Mere delay, within the statutory period for relief at law, does not preclude a recovery in equity, and at most that is all which appears here. Knowlton v. Walker, 13 Wis. 264. If delay were shown and in the meantime a change in the situation of the parties or the property, so that it would be unconscionable on that account to allow plaintiff at the late day to successfully assert his claim, the question would be different. There is no ground for saying that defendant was prejudiced by laches of plaintiff, or to show that plaintiff was precluded from recovering under the statute of limitations pleaded in the answer. Defendant relied on the ten-year statute (R. S. 1818, sec. 4215). That applies only to an adverse possession of ten years. The possession here was not adverse, but by agreement. The possession of J. E. Ellis from beginning to end was the possession of plaintiff. Such a possession, however long continued, will not ripen into title. Lampman v. Van Alstyne, 94 Wis. 417.

There is a contention that defendant was a purchaser for value without notice. The answer to that is that the court found the facts to be, in substance, that the corporation neither paid anything for the property, nor intended to, but obtained the title through mistake.

It is further contended that there was at least something due J. E. Ellis on the property from plaintiff, and that a recovery should not have been had by plaintiff except on condition of payment to the defendant of any sum due J. F. Ellis. The trouble with that is: First, the court found that nothing was due J. E. Ellis from plaintiff, which we see no reason for disturbing; and, second, the corporation delivered the lease of the property to J. F. Ellis after he severed his connection with the corporation, intending to relinquish any claim to the property, which, as before stated, must have referred to any claim under the general transfer which Ellis made in consideration of the corporation paying the indebtedness for which he was liable. That, of course, left the corporation without any interest in the property even of the character of an indebtedness of plaintiff to J. F. Ellis if such indebtedness existed.

The foregoing covers all points made in the appellant’s brief which are considered of sufficient significance to call for special mention, and requires an affirmance of the judgment.

By the Oovmt.— The judgment is affirmed.