Gibson v. Gibson

102 Wis. 501 | Wis. | 1899

Winslow, J.

In harmony with well-known common-law principles, our statute (Stats. 1898, sec. 3914) has long provided that an executor, administrator, or guardian shall not be directly or indirectly interested in the purchase of any real estate sold by him in his official capacity, and that, if he be so interested, the sale shall be void. The word "void ” in this section has been construed to mean “ voidable,” by this court. Melms v. Pabst B. Co. 93 Wis. 153. The integrity of this statute has always been jealously maintained by this court. McCrubb v. Bray, 36 Wis. 333; Martin v. Morris, 62 Wis. 418; In re Taylor Orphan Asylum, 36 Wis. 534.

The question which was litigated in the present case was whether the defendant Marie Gibson was directly or indirectly interested in the sale of the land to his son. Many of the facts are without dispute. The premises were bid off by George, April 15, 1872, at what seems a fair price, and the sale was confirmed April 23d. An administrators’ deed seems to have been made out, dated April 30th, but evidently it was not then executed or delivered. George went into possession of part of the land, and one Christianson into possession of the remainder. The evidence is of the vaguest character as to any payments on the land. The defendant says that he got money from George every little while, but cannot tell how much; nor is it shown that George had anything to pay with. Thus matters stood until June 4th, when Marie, Gibson gave a mortgage on his own lands to Hastings for $1,000, and Hastings discharged the Pearson Gibson mortgage on the lands in suit. The defendant does not explain this transaction satisfactorily. He does not state unequivocally that he owed George the money, but this is evidently tbe theory of the defense. Coming down to September 2d, we find the sale' still uncompleted, and the Mid-dlewood mortgage, now amounting to $1,900, still unpaid; and upon this day we find that George and Mark Gibson give their notes to Middlewood for $1,900, secured by a mortgage on the land in question, except the east fifty acres thereof; and on the same day Middlewood discharges the previous mortgage, and the administrator’s deed is finally acknowledged, but not placed on record until September 19, 1872. Thus, it stands established that the sale was not finally completed until as late as September 2d, and then it was completed by the giving of the notes of George and Marie for almost half of the purchase price, secured by mortgage on the west half of the land. On the 28th day of the following month, George deeds the east forty-five acres of the land to the defendant. This situation of affairs seems to us to call for the most clear and convincing explanation. Having advanced one fourth of the purchase price in securities and become security for nearly one half by his signature to notes, he’ appears, within two months after the execution of the deed, as the owner of one half of the land. These suspicious and suggestive circumstances are not satisfactorily explained. Ve have carefully examined the evidence of the defendant, and find it vague and contradictory, and in some instances absolutely contradictory of the records. For instance, he denied giving a mortgage to Hastings until after the deed was given to George Gibson, and could not think how the Hastings mortgage was paid, and denied giving any mortgage at all to Hastings to take up the Pearson Gibson mortgage. His testimony as-to how George Gibson paid for the property is unsatisfactory to the last degree. At one time he says that it was paid in money, then in mortgages and other shapes, but he cannot specify a single payment that George made at any time. Carefully as we have considered the testimony, we think it entirely fails to show that this administrator came into possession of nearly one half of his intestate’s estate rightfully. The inferences of direct or indirect interest on his part in the transaction which begin with the giving of the Hastings mortgage, June 4,1872, and end with the deed of half the land to him October 28th in the same year, are too strong and convincing to be overcome by the vague and contradictory general stateihents which we find in the testimony. Thus, we find ourselves unable to agree with the findings of the circuit judge to the effect that the defendant Mwrk was not directly or indirectly interested in the sale of the land, although we do not think that actual or intentional fraud on his part was proven.

But a difficulty here arises which bars the plaintiff’s recovery in ejectment. The principle is familiar that in ejectment the plaintiff must recover on the strength of his own title. As has 'been previously pointed out in this opinion, it has been held by this court that an administrator’s sale of land, in which the administrator is himself interested, is not absolutely void, but voidable only at the election of the persons entitled to avoid it. Melms v. Pabst B. Co. 93 Wis. 153. It follows from this that the defendants have legal title to the lands in suit until such title is set aside in some proper action. Until such setting aside of the sale, the plaintiff cannot maintain the purely legal action of ejectment, because, on his own showing, the defendants still have the title. Yeackel v. Litchfield, 13 Allen, 417. In harmony with this doctrine, it has been held in this court that where the defendant has the apparent legal title of record, and the facts which make that title inequitable or fraudulent as to the plaintiff are not of record, an equitable action is the proper action in which to obtain an adjudication of the plaintiff’s rights. Prickett v. Muck, 74 Wis. 199; Spiess v. Neuberg, 71 Wis. 279; Burrows v. Rutledge, 76 Wis. 22. In such equitable action, if it should appear that there was constructive fraud, only, on the part of the defendants, a court of equity can and will fix terms upon which the conveyance will be set aside. Cook v. Berlin W. M. Co. 56 Wis. 643, and cases there cited; Yeackel v. Litchfield, supra. Compare Hawley v. Tesch, 88 Wis. 213. We do not see how this can be done in an action at law, even under the betterments statute. We are aware that in McCrubb v. Bray, 36 Wis. 333, a recovery in ejectment was sustained in an action brought by the heir against an administrator who had purchased at his own sale; but the point was nowhere raised in the case, and the statute had not then been construed to mean that such a sale was voidable only, so we do not consider the question as settled in that case.

It follows that, although we disagree with the circuit judge as to the question of interest on the part of the administrator in the sale, still the judgment must be affirmed, because the evidence shows that the title to the lands in question is still in the defendants, and must be avoided, if at all, in an action in equity.

By the Gowrt. — ’Judgment affirmed, without prejudice to the right of the plaintiff to bring an equitable action to avoid the defendants’ title as indicated in the opinion.

BabdeeN, J., took no part.