Keller v. Fenske

123 Wis. 435 | Wis. | 1905

Tbe following opinion was filed November 15, 1904:

SiebecKBR, J.

Tbe court found tbat defendant went into possession of tbe premises under warranty deed from tbe life tenant immediately upon ber death, and “tbat be received and accepted tbe deed . . . and entered into possession of tbe premises without any knowledge of any claim of right to or interest therein by tbe plaintiff.” It appears by tbe above statement of facts th^t tbe record of all tbe conveyances and foreclosure proceedings disclose tbat tbe interest in tbe premises at tbe time tbe foreclosure proceedings were instituted was apportioned between tbe defendant’s grantor, as life tenant, and plaintiff, as tenant in remainder, and tbat defendant’s grantor bad acquired and held the title obtained at tbe sale of tbe premises under tbe decree of foreclosure. ' Tbe defendant took tbe title from tbe original life tenant with knowledge of its burdens and restrictions, as between herself and tbe tenant in remainder, under tbe rule tbat tbe recording of a deed entitled to record is constructive notice of its existence and contents to all subsequent purchasers of the land, and which holds them to have knowledge of what aj)-pears on the face of the title under which they claim. Pringle v. Dunn, 37 Wis. 449; Weeks v. M., L. S. & W. R. Co. 78 Wis. 501, 47 N. W. 737; Gilchrist v. Foxen, 95 Wis. 428, 70 N. W. 585.

]j appears that the original life tenant, Louise Eenske, was in possession of the premises at the time of the issuance of the sheriff’s deed under the foreclosure sale on Eebruary 13, 1899, and that she continued in such possession, collecting and using the rents, from the date of this sale to the time .she obtained the outstanding title under the foreclosure sale, and until her death. The defendant claims the right to the possession under deed from her from the date of her death. These facts show that the relationship of life tenant in jios-session and tenant in remainder subsisted at the time the life tenant purchased the outstanding title obtained at the foreclosure sale. Under these circumstances, the law regards this purchase by the life tenant as made for the joint benefit of herself and the tenant in remainder, and percludes her from holding it for her exclusive benefit, if the tenant in remainder will contribute her proper share of the sum paid for the interest thus acquired, which inures to the benefit of both. Whatever amount the life tenant paid above her proportionate share is secured to her as a creditor, and she becomes subro-gated to a lien on the real estate so purchased. Phelan v. Boylan, 25 Wis. 679; Melms v. Pabst B. Co. 93 Wis. 140, 66 N. W. 244; Allen v. De Groodt, 98 Mo. 159, 11 S. W. 240; Whitney v. Salter, 36 Minn. 103, 30 N. W. 755; Daviess v. Myers, 13 B. Mon. 511; Hunter v. Bosworth, 43 Wis. 583.

There is nothing in the findings of the court to show that an account was stated-between the parties as prayed for by plaintiff, should it be found that she is entitled to the relief asked for. This is, no doubt, due to the fact that the court f ound that plaintiff bad no interest in the property, and therefore had no right to an accounting. Since we find that plaintiff became the owner of the premises in fee simple at the termination of the life estate on the 5th day of April, 1903, the date of the life tenant’s death, it follows that the judgment must be reversed, and the action remanded, with directions that the court proceed to take the necessary proof for an accounting upon the matters involved, and incorporate the re-sult in a judgment which shall establish plaintiff’s title to the premises. In-the accounting the defendant should be ■charged with the income of the estate from the termination ■of the life estate, namely, April 5, 1903, less the amounts paid by him for taxes on the premises. Defendant is to remover such sums as he may have paid for improvements and to preserve the property since taking possession under the alleged deed of February 2, 1903. The right to reimbursement for improving and preserving .the estate since taking-possession is based upon the facts found by the court, that defendant acted innocently and in good faith under a mistake as to the true condition of the title. 3 Pomeroy, Eq. § 124-1.

The plaintiff is liable to the estate of the life tenant for the sum paid by the life tenant to purchase the outstanding title, less the interest paid thereon.

By the Gourt. — It is so ordered,

After the filing of the opinion and decision in this case on 'November 15, 1904, the appellant moved the court to correct 'the judgment so as to provide that there be paid, as a condition of plaintiff’s relief, directly to the respondent, the ■amount paid by his grantor to purchase the outstanding mort.gage title, less the interest thereon.

The following opinion was filed January 10, 1905:

Pee Ouexam.

After due consideration, we see no escape from the view that Louise Fenske, the life tenant, who paid • off the mortgage, did, by her warranty deed to the respondent, convey not only her life estate, but all tbe lien on the land which she acquired by reason of her payment of the mortgage. Larsen v. Johnson, 78 Wis. 300, 47 N. W. 615; Slaughter v. Bernards, 97 Wis. 184, 72 N. W. 977. As a result, all claims which she had to or upon that land, and which the plaintiff' would have been required to satisfy under the principles declared in the opinion in this case, became vested in the respondent; and he is entitled to be paid not only the several sums indicated in the opinion originally filed, but also the-amount of this mortgage lien.

It is therefore ordered that the judgment and mandate of this court be amended so as to direct that, as a condition of judgment in favor of the plaintiff, there be paid to the defendant the several sums indicated in our former opinion, including that therein directed to be paid to the estate of’ Louise Eenske.