75 Wis. 609 | Wis. | 1890
The plaintiff, in his own right and as assignee of Patrick Hickey, brings this suit for specific performance of the following memorandum in writing: “I herebj^ certify that I have purchased at the United States land office, at Bayfield, Wisconsin, the following described tract of land: The southeast.quarter of section ten, township forty-five north, range one east, of which the following named persons'are joint owners': S. S. Vaughn, one third interest; Charles Fisher, one third interest; Patrick Hickey, one third interest. Given under my hand this 28th day of October, 1874 [Signed] S. S. Vaughn. Witnesses: R. Langford, J. M. Davis.'”
The action is brought against the appellant as the sole heir at law of the said S. S. Vaughn, deceased, he having died January 27, 1886. The answer, among other things, sets up that administration of the estate of S. S. Yaughn, deceased, had been had, and the time for presenting claims against the estate had expired before the commencement of this suit; that she, the defendant, is the absolute owner
The plaintiff, besides the memorandum, introduced some oral evidence of the subsequent admissions of the said Vaughn, deceased, of the interest of the plaintiff and said Hickey in said land. The defendant introduced testimony tending to prove that, so far as the plaintiff’s original interest is concerned, he sold and conveyed it to said S. S. Vaughn, and that said land at the time of its purchase, or soon after, became and was the partnership property of the firm of Fisher & Vaughn, and a part of the assets of said firm, and was adjusted and disposed of as such, and became the individual property of said Vaughn at the final settlement and dissolution of said partnership, by the proper conveyance of said interest by said plaintiff, with all other assets and property of the partnership. The facts in respect to said partnership will be more fully stated hereafter.
The finding and judgment in respect to the one-third original interest of the plaintiff are, in substance, that he is still the owner, and entitled to a conveyance thereof from the defendant, and that she convey the same accordingly. The judgment in respect to the Hickey interest is in favor of the defendant. The defendant appeals from the former, and the plaintiff from the latter, part of the ’ judgment. The defendant’s appeal will be disposed in this opinion, and the plaintiff’s appeal will be disposed of in its proper order upon the calendar, as No. 187.
The first thing that strikes the mind of the court is the plaintiff’s great and unaccountable delay or laches in seeking to enforce the agreement implied in this memorandum. He waited nearly twelve years, during the life-time -of S. S.
When the land was purchased, the plaintiff and S. S. Yaughn were partners in merchandising and many other things, and soon after this land was entered upon the books of the concern as the “ Penokee Iron Lands,” and was represented also by the entry of the consideration of their purchase, first at $200, and afterwards at $277.10, which includes the expenses of their exploration. The plaintiff testified that the money to buy the land was taken from the money drawer of the firm. When first purchased, the land was supposed to be valuable for its iron deposits, and the complaint states that fact. It seems that afterwards they were regarded worthless by both of the partners, and the items of $277.10 and “Penokee Iron Lands’’were placed among the worthless accounts and assets of the firm. From October, 1874,'to May, 1875, these entries appear upon the journal and ledger of the firm, and finally appear upon the inventory of the assets of the firm at the time of its dissolution and final settlement. To that inventory is appended a bill of sale or conveyance under seal, executed and delivered by the plaintiff, by which he bargained, sold, granted, and conveyed to S. S. Yaughn, his heirs and assigns, all right, title, and interest in the property described in the
The evidence is overwhelming that this land, so far as the plaintiff and Yaughn were concerned, was partnership property, and wTas fully so adjusted with the other assets of the -firm. The money of the partnership was used in purchasing it. It was passed over to Yaughn on final settlement as partnership property. So long as it was partnership property, it was personal property; and when it was conveyed to Yaughn by the plaintiff on final settlement, as we have seen, it became and was real property of individual ownership, and so it has remained, so far as the evidence in this case shows. There was no evidence that it ever passed .to the plaintiff, or any interest in it, in any way or at any time, after it became partnership property. The plaintiff must have been aware that Yaughn paid the taxes upon this land while he was living, and treated the land all the time as his own individual property. In 1883 there was a tax deed upon it, and Yaughn became the purchaser of it by quitclaim deed from the grantee of the tax deed. He made a lease to one Moore of the east half of the land, for the purpose of prospecting for iron ore,- in 1884. The plaintiff has never concerned himself about the land until recently, or since it may have become valuable. It was incumbent upon the plaintiff to show when and how it ceased to be partnership property and became his. ITe did not show it. We must hold that the plaintiff surrendered to S. S. Yaughn, in his life-time, all the interest he ever had in said land, and is now estopped, in equity, from claiming any interest in it.
By-the Court.— The judgment of the circuit court, in respect to said one-third interest, is reversed, and the cause remanded with direction to render judgment for the defendant, dismissing the complaint on its merits.
ObtoN, J. The facts of this case on the appeal of the .plaintiff, excepting the assignment of the interest of Patrick Hickey in. the contract, will be found in the case of the appeal of the defendant.
As to the Hickey interest, the court found that there was no evidence that the instrument was ever delivered to Hickey by S. S. Vaughn in his life-time, or, if delivered, that the same was not surrendered by Hickey to Vaughn, or that his interest was not extinguished prior to the death of Vaughn, and as to, that interest the court rendered judgment in favor of the defendant. We are satisfied that the court decided correctly, for the reason that there was no evidence of the delivery of the instrument to said Hickey by Vaughn in his life-time, and we may add another sufficient reason.
The plaintiff failed to prove the quitclaim deed of Hickey by which he claims an assignment of his interest. The deed .and acknowledgment purport to have been made in the ■county of Washington, territory of Idaho. The acknowledgment was taken by a justice of the peace. The certificate of the authority of the justice to take the acknowledgment of the genuineness of his signature, and that the acknowledgment is in conformity to the laws of said territory, appended to said acknowledgment, appears to have been made by J. W. Haworth, county recorder of said
By the Ootcrt.— The judgment of the circuit court as to the one-third Hickey interest, in favor of the defendant, is affirmed.