67 Wis. 561 | Wis. | 1887
May 25, 1857, William Ryan executed and delivered to Mary Ann Fogarty a warranty deed of the premises. That deed was recorded on that day. December 29, 1873, Mary Ann Fogarty died, leaving a husband,
Upon the facts thus stated, is the plaintiff entitled to recover as against the defendant,— especially as to the whole absolute title ? There is no evidence that Ryan, the grantor of Mrs. Fogarty, ever had any title, or was ever in possession. For a time Mrs. Fogarty lived upon the premises; but under what title or right, if any, she claimed to have entered, or just when such residence commenced or terminated, does not appear. It is fair to presume such residence was some time between her receiving the deed from Ryan and the time of her death. In ejectment the plaintiff must recover, if at all, on the strength of his own title and not from the weakness or want of title in the defendant. Gardiner v. Tisdale, 2 Wis. 153; S. C. 60 Am. Dec. 407; Bald
Here there is no claim that the defendant is a mere trespasser or wrong-doer. On the contrary, it stands confessed that she went into the possession of the premises, claiming the title thereof, May 18,1874, under a warranty deed from James Fogarty, Sr., purporting to convey to her an absolute title of the premises, and that she had remained in such possession ever since; that she received such deed on the purchase of the premises from him, supposing she got a good title, and was to pay him therefor $300, and did pay him, at the time of such conveyance, $200; and she remained in such possession claiming such title for more than ten years before the commencement of this action. It is said that the amended answer admits Mrs. Fogarty to have been the common source of title, and hence that there was no necessity of proving that she had title. We do not so understand the answer. It alleges defects in the plaintiff’s chain of title from Mrs. Fogarty, but nowhere claims under her as a source of title. The mere fact that the defendant’s grantor had previously been the husband of Mrs. Fogarty did not preclude the defendant from entering into such possession under claim of title exclusive of any other right, founding such claim upon such deed as being a conveyance of the premises in question, as provided in sec. 4211, R. S. In other words, ten years’ adverse possession, under that ■ section, by one claiming under such written instrument, gives a perfect title, regardless of the nature of his grantor’s title or possession.
Thus, in Stevens v. Brooks, 24 Wis. 326, the defendant went into such possession under a warranty deed from one only having the rights of a mortgagee; yet it was held that
Since the evidence fails to establish a chain of title to Mrs. Eogarty, or any common source of -title, the plaintiff is forced to rely wholly upon Mrs. Fogarty’s possession for an indefinite time. This, certainly, was insufficient to give her an absolute title as against the world, under that section. Besides, when the defendant entered into such adverse possession under the deed from James Fogarty, Sr., May 18, 1874, the plaintiff’s immediate grantor, James'Fogarty, Jr., was over twenty-one years of age, and hence whatever right to the land descended to him from his mother became absolutely barred before the commencement of this action. True, most of her children were then, and some still are, minors, and the time during which their respective disability continued is not to be deemed any portion of the time limited by said section for the commencement of such action, for each was expressly authorized to commence such action after the time so limited and within five years after the disability had ceased or may cease. Sec. 4218, R. S.; Jones v. Billstein, 28 Wis. 221. But Mary, as well as James, had been of age more than five years before the commencement of this action. Others became of age later. The plaintiff may be able to prove a good title in Mrs. Fogarty by ten years’ adverse possession or otherwise, and may be able to establish a right to an undivided fractional interest in the land. The complaint was not, apparently, drawn up on that theory, and the cause was evidently not tried with direct reference to such questions.
Without going into the discussion further, and without
By the Oourt.— Ordered accordingly.
I a.ppend this note to the opinion in this case (1) to say that it was not necessary to pass upon the title of the defendant, because the plaintiff failed to prove title or any right of recovery; (2) to object to the principle, which seems to me to be established by the opinion, that a husband who lives with his wife and children on the land of his wife, and continues to live on said land for a short time after his wife’s death, may by deed give to another such title as will permit the latter, having knowledge of the true condition of the title, to continue in the possession of the land for ten years, and then set up adverse possession under the statute against the children and heirs of the wife.