86 Wis. 449 | Wis. | 1893
This is the third time this case has been before-this court. On the first trial the defendant recovered, and' the judgment was affirmed, and the plaintiff took a new trial under the statute. On the second trial the plaintiff recovered, and the judgment was reversed and a pew trial ordered. On the last trial the plaintiff recovered, and the-defendant has appealed.
The facts are substantially. the same as on the second trial. The action is in ejectment, and the only land now in question is the E. £ of the W. ^ of the N. W. -J of section 30, township 3 north, range 4 west. The land was entered by John II. Garner on the 16th day of January, 1855. John II. Garner conveyed it to William TL Garner, by warranty deed, September 17, 1858, and William H. Garner and his family occupied and improved the land as his own until his death, about 1871; and his widow and children continued to reside on the land and improve it and pay taxes thereon until 1879 or 1880, when they removed to Nebraska and left the land in the possession of a tenant until March, 1881. The defendant went into possession of the land in about 1883 under a quitclaim deed from one John Tager, who held it by a tax deed which has since been declared void, but the defendant is still in possession. The widow and heirs of William H. Garner, deceased, deeded the land to the plaintiff on the 12th day of December, 1883.
The title of William H. Garner to the land, therefore, • remained as perfect after the execution of the deed as before, if the deed was in fact a mortgage. It is contended by the learned counsel of the appellant that before the deed can be given such effect a specific performance of the verbal agreement of John R. Wheeler to execute the de-feasance should be obtained in chancery. That does not seem to be necessary. As soon as the deed is proved and decided to be a mortgage, it is a mortgage to all intents and purposes, with all of its incidents and legal characteristics as it affects the title of the land. Such specific performance no doubt might be obtained, so that the agreement might not rest in parol, but I can find no authority that this is necessary. Ail authorities agree that the deed may be proved to be a mortgage by parol evidence. Dobbs v. Kellogg, 53 Wis. 448.
This finding of the jury is sufficient to entitle the plaintiff to recover, without the seeming inconsistent finding of title by adverse possession. There is no evidence that William H. Garner ever disclaimed the title of John B. Wheeler as his grantee, or claimed to hold by any other title. Although this finding may be unnecessary, and perhaps inconsistent with the fact that said deed is a mortgage, the doctrine that a grantor of an absolute deed, continuing in possession, may set up adverse possession
By the Court.— The judgment of the circuit court is affirmed.