29 Wis. 333 | Wis. | 1872
Lead Opinion
Tbe following opinion was filed at tbe June term, 1871:
Tbe first count of tbe complaint alleges tbat tbe deed of conveyance, dated May 10, 1863, executed by tbe defendants Samuel Simpson and Sydney Simpson, bis wife, to tbe defendant Sophia A. Bagan, and delivered to her husband, tbe defendant Ransom Bagan, for her, on tbe 2d day of June, 1863, was in fee simple and absolute, and that it was so intended to be made and delivered in satisfaction of tbe mortgage debt Tbe averment is, tbat tbe husbands Samuel Simpson and Ransom Ragan, were “ acting as, and were, tbe agents of their said wives respectively ” at tbe time tbe deed was delivered, and in relation to tbe business then transacted between them, and tbat “ they entered into an arrangement or agreement tbat tbe proceedings to enforce said mortgage should be satisfied and discharged, in consideration of wbicb tbe said Samuel
The agreement on its face does not operate as a defeasance, or show that the title conveyed by the deed was conditional, It does not appear from the agreement, nor from any averments contained in the complaint that the deed was intended as security for the payment of $1,400 or any other sum, or that Mrs. Simpson or her husband was to have any right of redemption. The pleader seems carefully to have avoided any statement or admission from which it could be inferred that the deed was to operate as a mortgage. It is true, it is averred that the plaintiff, since he purchased and paid for and received a conveyance of the premises from the Ragans, has ascertained that the Simpsons “claim and pretend” that the deed executed by them was intended as a-mortgage, and was, in fact made and delivered by them only for the purpose of securing payment to the Ra-gans of the sum of $1,400. It is also true the plaintiff demands relief “ that if, as is pretended by the defendants, .Sydney Simpson and Samuel Simpson, the claim and title of the said plaintiff, in the first count of this complaint mentioned, shall be adjudged to be a mortgage, an account may be taken of the amount due thereon for principal and interest,” etc. The complaint does not, however, anywhere admit, nor intend to, that there is any foundation whatever, either in law or in
Construing the pleading, therefore, according to its clear intent and meaning, it avers the unqualified legal title and ownership of the lands to be in the plaintiff, and that the defendants, Simpson have no right or valid claim of title thereto, either at law or in equity. The demurrer to the first count, of course, admits these facts; and the question then arises, whether the count states any cause of action in equity. It appears from the same count that the plaintiff is not in possession of the lands, but that the defendants Samuel and Sydney Simpson aw, and they demur to the ¡Heading because it does not state facts sufficient to constitute a cause of action. It would seem that their demurrer is well taken. The plaintiff having the legal title, and neither averring nor admitting any equitable title or interest in these defendants, and not being himself in possession of the lands, but the same being adversely held and possessed by the defendants, cannot maintain his suit in equity against them. He has an adequate and unquestionable remedy at law, by his action of ejectment; and to that action he must resort It is only the person having the possession and legal title to the land who may institute his suit quia timet in equity against any other person setting up a claim of title thereto. E. S., ch. 141, sec. 29; Maxon v. Ayers, 28 Wis., 612. The first count sets up no other cause or ground for equitable relief than such claims and pretenses, which are apparently unfounded; and it will be time enough for the plaintiff to meet and refute them when interposed, if they should be. by way of equitable defense to his action of ejectment, which he may commence at any moment.
The first count being demurrable because it states no cause of action, it follows that there is no misjoinder of causes of action, and consequently, that the demurrer on the latter ground
By the Court. — Tbe order overruling tbe demurrer is reversed, and tbe cause remanded witb directions that tbe demurrer to tbe first count of tbe complaint be sustained.
Rehearing
A motion for a rebearing was denied, and tbe following opinion filed, at tbe January term, 1872.
Upon re-examining tbe first count of tbe complaint, it still seems not surprising that tbe nature of tbe cause of action stated in it, or intended to be, was tbe subject of solemn inquiry and careful study on tbe part of this court. If, as now appears from tbe argument of tbe learned counsel for the' plaintiff on motion for a rehearing, tbe intention clearly was to state a cause of action at law, or in ejectment, as tbe claim is, there are certainly many averments and facts alleged in .the count, which; to say tbe least, are well calculated to bewilder and mislead as to tbe true intention of tbe pleader. If tbe intention was, as is now avowed, to state a legal cause of action, wbiob, upon tbe facts alleged, could only be ejectment, clearly nothing could be more apt to puzzle and embarrass than tbe averments found in folios forty-six and forty-seven of tbe count, which are only suited to an action in equity for tbe foreclosure of a mortgage or other lien upon land, and which read as follows :
“And the said plaintiff further shows upon information and belief, that no proceedings have been bad at law to recover tbe money or other property secured by said mortgages or any part thereof; that tbe defendants Ransom Ragan and Sophia A. Ragan, Cyrus H. McCormick and Leander McCormick have or claim to have some right, title or interest in or to said ! premises or some part thereof, but which is subject and subordb
Considering tbe purpose of tbe pleader to have been to declare in ejectment for tbe land upon tbe legal title, it must be admitted, we think, that tbe presence of averments like these and others not less inappropriate to that form of action, was well adapted to perplex and confuse. Tbe complaint in ejectment is a short pleading, tbe form and averments of which are regulated by statute, and which for tbe present case, in tbe statutory form, would scarcely have exceeded one folio; whilst this complaint or count exceeds forty-eight folios.
But, be these things as they may, or tbe doubts which existed in tbe mind of tbe court as to tbe object and intent of tbe pleading never so ill founded, we are still of opinion that tbe motion for a rehearing must be denied. Considering tbe design to have been to declare in ejectment, tbe count fails entirely to comply with tbe statutory requirements of tbe complaint in such action; and tbe learned counsel are quite mistaken when they say or assume that tbe former opinion held tbe pleading sufficient for that purpose, or that a good cause of action in ejectment was stated. A perusal of tbe opinion, even tbe most hasty, will show this mistake. Tbe labor there was to demonstrate that tbe count stated no cause of action in equity, and with that conclusion tbe court rested, and in that conclusion counsel acquiesce.
In arriving at such conclusion, and as part of tbe process of
As the first count, therefore, states no cause of action at law, as well as none in equity, it follows that there is no reason for changing or disturbing the decision already made, and that the motion for a rehearing should be denied.
By the Gowrt. — Motion denied.