41 Wis. 436 | Wis. | 1877
It is objected by the learned counsel for the defendants below, that the complaint fails to state a canse of action under sec. 29, ch. 141, R. S. The action is not brought under that provision of the statute, but is founded upon the inherent power of a court of equity to prevent or remove a cloud upon the title to real estate. It is stated in the bom-plaint that the defendant Ooe, acting as sheriff, has levied upon the real estate described therein, by virtue of an execution in favor of his codefendant and against Samuel Stout and 0. Stout, and that he is proceeding to sell the property to satisfy the execution. The plaintiff claims that the judgment upon which the execution issued never became a lien on the property, and he seeks to enjoin the sale because the sheriff’s certificate or deed will be a cloud on his title. There can be no doubt that a court of equity will exert its jurisdiction and grant relief in such a case. And this it will do by virtue of its inherent powers as a court of equity. Pier v. The City of Fond du Lac, 38 Wis., 470; Hamilton v. The City of Fond du Lac, 25 id., 490; Siegel v. The Supervisors of Outagamie Co., 26 id., 70; The Milwaukee Iron Co. v. The Town of Hubbard, 29 id., 51. Whether or not the complaint would be sufficient under sec. 29, is therefore a question which does not arise in the case.
We fully concur in the views of the learned circuit judge, that the judgment upon which the execution was issued never became a lien upon the property, for two sufficient reasons: (1.) Because Samuel Stout, had parted with all interest hi the property before the judgment was docketed in Vernon county; and (2.) Because, up to the time Samuel sold the property,
But on the other ground it is clear from the testimony that prior to and at the time Samuel Stout sold the lot in December, 1870, he owned and held it as and for a homestead. The evidence is conclusive upon that point. It is suggested by defendant’s counsel that he then abandoned the property as a homestead, and the judgment became a lien upon it. The case of Jarvais v. Moe, 38 Wis., 440, is relied on to sustain this position. But that case lays down no such doctrine. On the contrary, it distinctly recognizes the principle that one selling his homestead may well be presumed to do so, not for the purpose of abandoning, but for the purpose of changing his home. p. 447. Indeed the statute expressly provides that the owner of a homestead may sell and convey the same, and such sale and conveyance shall not render such homestead liable to a sale on execution. Sec. 30, ch. 134, Tay. Stats. But again it was said the sale made by Samuel Stout in December, 1870, was absolutely void because the wife did not join in it.
Another objection was taken, that the deed executed by Samuel Stout and wife to the plaintiff was not proven on the trial. To this it is answered that there was no sufficient denial in the answer of the execution and delivery of the deed, to put the fact in issue. The complaint alleges the making of the deed; sets out the instrument in hceo verba, and states the volume and page of the record in the register’s office where the conveyance is x’ecorded. The answer traverses each allegation of the complaint not admitted, by averring “ that they have not sufficient knowledge or information to form a belief, and therefore deny the same.” It seems to us that when a party is pointed to the recora of a.n instrument in the pleadings, he is not permitted to answer that he has no knowledge or information sufficient to form a belief whether there is such an instrument or not. There is a public record which he can consult, and which it was intended he should resort to in order to inform himself upon the subject. Hathaway v. Baldwin, 17 Wis., 616; Mills v. The Town of Jefferson, 20 id., 50; Brown v. La Crosse City Gas Light and Coke Co., 21 id., 51; State on complaint of Kennedy v. McGarry, id., 496; The City of Milwaukee v. O’Sullivan, 25 id., 666. The principle of these decisions is, that a party cannot plead ignorance of a public record to which he has access, and which affords him all the means of information necessary to obtain positive knowledge of the fact. We therefore hold that the answer practically admitted the execution of the deed by Samuel Stout and wife to the plaintiff*, and that no proof of it was necessary under the pleadings.
The only remaining objection necessary to be noticed is the one relating to the jurisdiction of the circuit judge to try and
These remarks dispose of all the material questions in the case.
By the Gowrt. — The judgment of the circuit court is affirmed.