Geisinger v. Beyl

80 Wis. 443 | Wis. | 1891

Lyost, J.

1. The learned counsel for defendant earnestly contended in his argument that there is no testimony to support the finding of the jury that when the tax deeds. were executed defendant was the agent of the plaintiff for “selling or caring for the plaintiff’s interest in the land in question.” We do not agree with counsel in this view of the testimony.

Plaintiff resided at Rochester, in Minnesota, and the defendant resided in Barron county, in this state, near the land. The parties had considerable correspondence in 1869, 1870, and 1871 concerning the land. Some of the letters which passed between them are in evidence, and the contents of others, which had been lost or destroyed, were testified to on the trial. This testimony will not be repeated here. It is sufficient to say of it that, if true, it proves that the defendant was, at the times mentioned, the agent of the plaintiff, not only to look after and care for the land, but to sell it. In either case it was a violation of his duty to take a tax deed of the land to himself or another, for it was his duty to protect and preserve plaintiff’s interest therein. Hence the tax deeds were a fraud upon the plaintiff, and vested in defendant no title to the land. At most, the purchase of the tax certificates by the defendant was a redemption of the land from the tax sales thereof.

■ A criticism is made upon the language of the special finding, which is in the disjunctive. It required the jury to find whether defendant was such agent for the purpose of “ selling or caring for ” plaintiff’s interest in the land, etc. It is argued that some of the jurors may have found that he was such agent for selling, but not for caring for, the land, while others of them may have found that he was agent to care for the land, but not to sell it; and hence that the finding does not demonstrate that it represents the unanimous opinions of the jurors. As a general rule, a question for a special verdict should not be framed in the alternative or disjunctive, but should be plain, single, and direct. A violation of this rule may introduce into the verdict an element of uncertainty, subjecting it to the criticism made in this case. But under the testimony we think the criticism is not applicable here, for the reason that the testimony which tended to prove that defendant was agent to care for the property, in like manner tended to prove that he was agent for the sale thereof as well, and vice versa, and the jury could not well have found that he was the agent for one purpose and not the other. Hence the verdict must have been the same had the question been framed in the conjunctive instead of the disjunctive, or had two questions been submitted, one as to the agency to sell, and the other as to the care of the land. For these reasons we think the answer of the jury to the question under consideration necessarily expresses the unanimous verdict of the jurors, and that the objections thereto are, under the circumstances of the case, entirely technical and unsubstantial.

Ve conclude, therefore, that the finding on the subject of defendant’s agency is supported by the testimony, and demonstrates that the defendant took no title to the land under any of the tax deeds.

2. There is no testimony tending to show, and it is not claimed, that the defendant was in the actual possession of the land in controversy when the action was commenced. It is therefore undoubtedly essential to the plaintiff’s right of action that he prove that the land was then unoccupied. Pier v. Fond du Lao, 38 Vis. 470. The special verdict contains no finding to that effect. Hence, unless such non-occupancv is proved by the uncontroverted evidence, the judgment cannot be upheld. Such is the rule of Hutchinson v. C. & N. W. R. Co. 41 Vis. 541, and many other cases decided by this court. It is claimed on behalf of defendant that there is no testimony on the subject. Vere such the. fact, we would be called upon to determine whether there is any legal presumption of occupancy or non-occupancy,— a question suggested, but not determined, in Pier v. Fond d,u Lao, supra. But, for reasons that will now be stated, we think the fact is otherwise.

At the commencement of the trial the plaintiff proved his title to the land prior to the execution of the tax deeds, lie then introduced the record of the deed executed by Steinlce to the defendant, to show that the latter claimed title to the land, and rested his case. The defendant thereupon moved for a nonsuit on the ground that “ there was no evidence of any possession by the defendant of the lands in question.” If the burden of proving non-occupancy is on the plaintiff, in the then state of the proofs the motion should have prevailed. But the court permitted the plaintiff to introduce further testimony, and he thereupon put in evidence the correspondence between the parties before mentioned, and the tax deeds to Steinke. It may reasonably be inferred from several passages in letters written by the defendant that the land was unoccupied whan the letters were written. There being no testimony to the contrary, the legal presumption is. that they remained unoccupied until this action was commenced. It seems to have been understood and conceded on the trial that plaintiff had supplied the proof of non-occupancy, for at the close of his testimony defendant again moved for a nonsuit bn the sole ground that the alleged agency of defendant had not been proved. Had he not understood that the proof of non-occupancy had been supplied, it is reasonable to believe, he would also have assigned the want of such proof as an additional ground for nonsuit. The record contains no further mention of the subject.

But there is another fact in the case which is fatal to the objection under consideration. The court said to the jury that “ the questions which the court directs you to answer involve all the controverted facts of the case upon which plaintiff founds his claim.” Ho exception was taken to this language. If the defendant thought that the non-occupancy of the land was a controverted fact in the case, or was entirely unproved, then was the time for him to speak. But he failed to do so. His silence.is equivalent to an admission that the non-occupancy was proved. A suggestion on the trial that the plaintiff’s proofs were defective in this particular would no doubt have called out further proof on the subject, or led to a submission of the question to the jury, or to a direct ruling that non-occupancy was sufficiently proved. Under the circumstances, it would be most unjust to permit the defendant to dispute the sufficiency of the proofs in that behalf.

The foregoing observations dispose of the points urged for a reversal of the judgment. The record discloses no material error.

By the Court.— Judgment affirmed.