Kruczinski v. Neuendorf

99 Wis. 264 | Wis. | 1898

Cassoday, C. J.

The contention that the complaint does not conform to sec. 3102, R. S. 1878, is without significance, ■since this is not, and does not purport to be, an action for partition.

1. One ground of demurrer is that there is a defect of parties defendant in omitting to make Joseph Weisbrod a party defendant. It is true the quitclaim deed from the four heirs, not parties to this action, ran to Katharine and Joseph Weis-brod, but they both conveyed all their right, title, and interest in and to the land in question to the defendant John F. Neuendorf \ nearly eight years before the commencement of this action. No relief is prayed against Joseph Weisbrod. He has no interest in the land nor the controversy, within the meaning of the statute. E. S. 1878, sec. 2610. He neither has nor claims an interest in the controversy adverse to the plaintiffs, and he is not a necessary party to a complete determination or settlement of the questions involved in this •action. E". S. 1878, sec. 2603. We must hold that there is no defect of parties by reason of such omission.

2. It is contended that several causes of action have been improperly united. But the statute expressly provides that the plaintiff may unite in the same -complaint several causes of action, whether they be such as were formerly denominated legal or equitable, or both, where they arise out of the same transaction, or transactions connected with the same subject of action. E. S. 1878, sec. 2647. The subject of the action is the land. Upon the death of the intestate, the land in question descended, subject to his debts and the rights of his widow, in equal shares to his eight children. E. S. 1878, sec. 2270; Jones v. Billstein, 28 Wis. 221; Marsh v. Waupaca Co. 38 Wis. 250; Jones v. Graham, 80 Wis. 11; Root v. McFerrin, 75 Am. Dec. 49. The undivided one-half of the land so descended to the plaintiffs. There is no question of any debts of the intestate here involved. The rights of the widow terminated on her death. The action is to remove clouds fraudulently placed upon the undivided one-half of the land so vested in the plaintiffs, December 25, 1882, when they •were all infants. The deeds and mortgages here sought to-, be set aside are, respectively, upon the east half of the land of which the intestate died seised, and which is the only part of the land involved in this action. The several causes of action alleged all'belong to one of the classes mentioned in sec. 2647, E. S. 1878, and affect all the parties to the action,, and do not require different places of trial, and are stated separately, and hence satisfy the conditions of that section. We must hold that there is no misjoinder of causes of action. Bassett v. Warner, 23 Wis. 673; Watson v. M. & M. R. Co. 57 Wis. 339; Ellis v. N. P. R. Co. 77 Wis. 114.

3. Another ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action. This certainly cannot be maintained. Hawley v. Tesch, 72 Wis. 299; S. G. 88 Wis. 213; Lamberton v. Pereles, 87 Wis. 449. It is well settled that one having the legal title to land, though not in possession, may, independently of the statute, maintain a bill in equity to remove a cloud from his title. Pier v. Fond du Lac, 38 Wis. 470; Smith v. Sherry, 54 Wis. 128; Smith v. C., M. & St. P. R. Co. 83 Wis. 280; Smith v. Zimmerman, 85 Wis. 542; Davenport v. Stephens, 95 Wis. 459.

4. Upon this general demurrer, the defendants were authorized to avail themselves of the objection that the plaintiffs had an adequate remedy at law. Denner v. C., M. & St. P. R. Co. 57 Wis. 218; Trustees of Kilbourn Lodge A., F. & A. M. v. Kilbourn, 74 Wis. 452; Avery v. Ryan, 74 Wis. 599; Gullickson v. Madsen, 87 Wis. 23. It is otherwise as to a mere demurrer ore tenus, for then it is waived. Pierstoff v. Jorges, 86 Wis. 128; Meyer v. Garthwaite, 92 Wis. 571; Ryan v. Schwartz, 94 Wis. 404. What is inadvertently said and held' in Stein v. Benedict, 83 Wis. 604, 616, must be regarded as overruled. It does not appear, however, that the plaintiffs have an adequate remedy at law. Ejectment would merely secure the title and possession, leaving the outstanding deeds and mortgages as clouds upon the title.

5. Under the allegations of the complaint, the judgment and decree of the county court, to the effect that the four adult children of the deceased, Simon, were his sole heirs at law, must be regarded as- a nullity, so far as the plaintiffs' in this action are concerned. They were infants at the time without any guardian, and had no notice, and of course did not in any way participate in the proceedings; and hence that judgment and decree, in so far as it inferentially attempts to affect the title of the plaintiffs, must, on this demurrer, be regarded as a nullity. O'Dell v. Rogers, 44 Wis. 136; Melms v. Pfister, 59 Wis. 186; Jones v. Graham, 80 Wis. 11. Upon the facts stated, such'judgment and decree of the county court was a mere cloud upon the title of the plaintiffs.

By the Court.— The order of the circuit court is affirmed.