Hamilton v. Beaudreau

| Wis. | Feb 3, 1891

Taylor, J.

It is very questionable whether the complaint of the plaintiff in the action states facts sufficient to entitle her to any relief; but, as the defendants answered the complaint and made no objection on the trial as to the insufficiency of the complaint, such objection is probably waived, and we must determine whether, upon the evidence and the findings of the court, the plaintiff is entitled to any relief. The plaintiff alleges in her complaint that she was the' owner in fee of the land described in the complaint. This allegation is denied by the answer. It was incumbent, therefore, on the plaintiff to show upon the trial that she had such title, as that is the sole ground upon which it was possible for her to recover upon her complaint.

The court has found, as a fact, that she was not such owner, and this disposes of her case, unless such finding is unsupported by the evidence. The plaintiff has the affirms tive on this issue, and, as we think, has entirely failed to show title in herself. She offers no evidence of title, in fact, except a quitclaim deed from Witherell, dated in October, 1887, for a consideration of $10. There was no evidence showing or tending to show that, at the time of giving such deed, Witherell was in the actual possession of said lot. On the contrary, the evidence shows that another person was in the actual possession of said lot as early, at least, as April, 1887, and there is no evidence that such person was in such actual possession as the tenant of Wither-ell, or in any other way held possession for him. The evidence also shows that from the date of the tax deed the defendant has paid all taxes on the land, and redeemed from the several tax sales thereof, made before such tax deed was executed.

The only evidence which has any tendency to show title in Witherell, was a statement of a witness who said he knew plaintiff owned the property in question while he lived here in Eond du Lac. This evidence was clearly incompetent to prove title in plaintiff had it been objected to. As it was not objected to as incompetent evidence, the court might have considered it as tending to show title in the plaintiff, but as that evidence referred to a time long past, and the other evidence showed another person in the actual possession, we think the court rightly decided that title in the plaintiff had not been shown.

The evidence in this case shows a tona fide claim of-title on the part of the defendants, and the payment of a large sum for taxes assessed on the premises, for all the years from 1882. Upon this state of fact it seems to us that, in order to entitle the plaintiff to the relief asked, she should have made out by clear proof that she was the legal owner of the land when she commenced her action. We do not feel called upon to decide whether the tax deed under which the defendants claim is void for either of the causes mentioned in the argument for the appellant, as we hold that there was not sufficient evidence of ownership of the property by the plaintiff to entitle her to a judgment in her favor.

By the Oourt.— The judgment of the circuit court is affirmed.