62 Wis. 434 | Wis. | 1885
The following opinion was filed upon the first áppeal:
This is an appeal from an order of the circuit court striking out the demurrer of the defendants to the complaint in the action as frivolous. The demurrer stated three grounds: (1) A defect of parties plaintiff, and a mis-joinder and improper joinder of parties plaintiff; (2) That several causes of action have been improperly united; (3) That the complaint does not state facts sufficient to constitute a cause of action.
The learned counsel for the appellants do not undertake to sustain the first ground of demurrer above stated, even against the charge of frivolousness; but as to the other grounds, they not only undertake to sustain them against that charge, but insist that they are well taken, and should have been sustained by the court.
After reading the elaborate argument made by the learned counsel for the appellants in support of the third ground of demurrer, we think we would hesitate to declare that it was frivolous. That question is not, however, before this court. Upon an appeal from an order striking out a demurrer as frivolous, wThich order also allows the defendant to‘answer upon the usual terms, this court has established the rule that the order will not be reversed unless the demurrer be in fact well taken. The rule is based upon the fact that under the statute the party may have the same relief, by permission to answer, as he would if his demurrer had been overruled upon its merits. When, therefore, the court striking out the demurrer grants the same relief that would be granted on overruling the same upon argument, to reverse such order upon an appeal to this court, when it is evident such demurrer must be overruled upon its merits, could only have the effect to protract litigation at the expense of both parties, without the possibility of any beneficial result to either. Sec. 2681, R. S.; Diggle v. Boulden, 48 Wis. 477, 482; Lerdall v. Charter Oak L. Ins. Co. 51 Wis. 426, 430; Magdeburg v. Uihlein, 53 Wis. 165; Krall v. Libbey, 53 Wis. 292,
We will first consider the third ground of demurrer, viz., that “ the complaint does not state facts sufficient to constitute a cause of action.” The cause of action clearly intended to be stated in the complaint is substantially as follows: The plaintiffs are the heirs at law of Sextus Hoffman, deceased, who died intestate in September, 1873; that at the time of his death he was the owner of certain real estate, described in the complaint, situate in the county of Douglas, in this state, giving the value thereof; that Leonard F. Wheelock was duly appointed administrator of the estate of said Hoffman, June 7, 1875; that he caused an inventory and appraisement of said estate to be made; that he petitioned the county court of Douglas county for leave to sell the real estate of the deceased to pay the debts of the deceased, and that he obtained a pretended license from said court to sell the same, but which, it is alleged, was void, because not signed by the county judge; that by virtue of such license he pretended to sell said real estate; that he made a report of sale to said court, which court, on August 3, 1880, confirmed said sale, and directed said Wheeloolc, as such administrator, to convey such real estate to the purchaser at such sale; and that on the 26th day of August, 1880, said Wheeloolc, as such administrator, executed a deed for said real estate to Henry L. Woodard, which was duly acknowledged and recorded in the office of the register of deeds of said county of Douglas on the 26th day of August, 1880. The complaint also alleges that Woodard and wife, by Leonard F. Wheeloolc, his attorney in fact, conveyed all the lands described in the deed of Wheeloolc as administrator to Woodard, to Hamilton Peyton, of Minnesota, August 25, 1882, which deed was also duly recorded in the office of the register of deeds of Douglas county, for the nominal
It is unnecessary to a full understanding of the case to state more particularly the facts alleged, showing the fraudulent character of the whole proceedings on the part of Wheelock as administrator, as it is not seriously contended on the part of the appellants that the facts alleged in the complaint are not sufficient to avoid the sale and administrator’s deed, as well as the conveyances to the other defendants. The point made by the learned counsel for the appellants upon this ground of demurrer is that the facts alleged by the complaint show that the administrator’s deed is absolutely void, and is therefore no cloud upon the title of the plaintiffs; and not having alleged facts showing them
Under sec. 4154, R. S. (see Chase v. Whiting, 30 Wis. 544; Ehle v. Brown, 31 Wis. 405), the administrator’s deed is pr ima facie evidence of the regularity of the proceedings prior to the sale, and is therefore a cloud upon the plaintiff’s title, which he may have removed by proceedings in a court of equity. Moore v. Cord, 14 Wis. 213; Gile v. Hallock, 33 Wis. 523; Pier v. Fond du Lac, 38 Wis. 470; Willis v. Sweet, 49 Wis. 505. We think the allegations of the complaint are abundantly sufficient, if proved, to establish the invalidity of the administrator’s sale and conveyance, on the ground of actual fraud on the part of the administrator, irrespective of any irregularities that may or may not exist in the proceedings of the probate court; and the deed and the record thereof, under the statute above cited, being presumptive evidence of a valid title in the grantee therein named, creates such a cloud upon the plaintiffs’ title as authorizes them to maintain their action to have the same declared void. We think the third cause of demurrer was not well taken, and was properly overruled by the court.
After a careful consideration of the second ground of de
The allegations upon which this cause of action is based, are, substantially, that after the appointment of Wheeloek as administrator of the estate of the deceased, and before he made the sale as administrator, he committed waste upon the premises in question by removing therefrom and selling a tannery and dwelling-house situate thereon, and also dug up and sold apple trees that were standing and growing thereon; also that he leased a part of said land, and received some rents therefor as administrator, for which he has failed to account. In the prayer for relief, the plaintiffs, among other things, demand judgment “that said defendant Leonard F. Wheelock be required by the order and judgment of this court to account in this action for all damages done by him while acting in the capacity of administrator of the estate of said Sextus Hoffman, deceased, to the said real estate hereinbefore described, by his said acts of waste thereon done by him while acting as such administrator as aforesaid.” This demand for judgment can only be predicated upon the acts alleged in the complaint to have been done by Wheeloek alone, before the administrator’s sale, and the other defendants are in no manner connected
Sec. 2647, R. S., defines what causes of action may be united in one complaint, and closes up with the following language applicable to all, viz.: “ But the causes of action so united must all belong to one of these classes, and must affect all the parties to the action, and not require different places of trial, and must be stated separately.” In this caso the cause of action for the waste committed by the defendant Wheelock affects all the plaintiffs to the action, but it does not in any way affect any of the defendants except Wheelock. It cannot, therefore, be joined with another cause of action which affects all the plaintiffs and defendants to the action.
Had not the plaintiffs demanded a separate judgment against Wheelock for the damages caused by his wasting the premises, the allegations in the complaint as to the waste and damage committed by the defendant Wheelock might have been treated as proper allegations bearing upon the right of the plaintiffs to an injunction against the defendants pending the action, and the case would come within the rule laid down by this court in Riemer v. Johnke, 37 Wis. 258, 261.
The plaintiffs having stated a good cause of action against Wheelock alone for the recovery of the waste and damage committed by him previous to the sale of the lands to the other defendants, and having demanded a separate judgment against him for such damage and waste, we cannot hold otherwise than that two causes of action are stated in the complaint, only one of which affects all the parties thereto. The complaint was properly subject to' the demurrer that two causes of action were improperly joined. Whether this defect can be reached by a joint demurrer of all the defendants, when such causes of action are properly joined as to one of the defendants, need not be decided in this case, as
Upon the second appeal the following opinion was filed:
This is an appeal from the order of the court refusing to set aside the temporary injunction issued in the action, restraining the defendants from transferring the property in dispute and from committing waste thereon during the pendency of the action.
It is urged by the learned counsel for the appellants that the injunctional order should not have- been granted, for the reason that all the material facts charging fraud upon the defendant Wheeloole and the other defendants are stated on information and belief, and not positively; and that the in-junctional order was granted upon the sworn complaint alone. After a careful reading of the complaint, we do not think the objection well taken. Many of the facts are stated positively which tend to establish the fraud of Wheeloole; and it does not appear to us that any injustice was done in granting the injunction. Nor, as bearing upon this question, do we deem it material that the complaint was properly subject to a demurrer on the ground of the improper joinder of causes of action. The whole scope of the action, and the principal relief sought, is to vacate the sale of the lands of the plaintiffs on the ground of fraud, and restore the title to them; and the facts alleged clearly entitle them to that relief, if they establish them on the trial. It ought not to prejudice their right to have the defendants restrained from further embarrassing them in establishing their rights to the property in question, because they have inadvertently demanded relief against Wheeloole upon
By the Gourt.-- The order appealed from is affirmed, and the cause remanded for further proceedings.