Prickett v. Muck, 74 Wis. 199

Prickett v. Muck

74 Wis. 199 | Wis. | 1889

Cassoday, J.

1. The testator died without issue him surviving. The plaintiff was his nephew. By the terms of the will the plaintiff was not entitled to the possession of the land while the widow remained unmarried. To entitle the plaintiff to the right of possession, it was necessary for him to prove that since the testator’s death the widow had married. It is claimed that there is no sufficient proof of such marriage to support the finding to that effect. Such marriage was alleged in the complaint. In the body of her affidavit, made and sworn to May 20,1881, and also in her signature to the same, she described herself, as “ Mary M. Toule, née Priekett.” This, as we understand it, was a declaration by her that before she married Toule her family name was Priekett. She made substantially the same declaration in her deed to Forney, under which the defendant claims title. Such proofs, together with her admissions of ■the fact in the house where she was boarding, in the absence of any evidence to the contrary, would seem to be *204sufficient to support such finding as against one claiming title under the papers in'which such admissions were made. Besides, the plaintiff, as such reversioner of the land, could maintain this action to remove such cloud from the title, if at all, had the widow remained single.

2. The counsel for the defendant contends that there is no proof to support the finding that the testator was the owner in fee of the land, under a school-land certificate, at the time of his death. It is manifest that he resided upon the land at that time. This was notice to the world of whatever interest he then had. Besides, the affidavit of Mary Margaret, upon which she obtained the patent under which the defendant claims title, states the fact of such certificates — giving their numbers — having been the property of said deceased, and that she therein made claim to the same as his heir at law. Such facts may be shown in a case like this. State ex rel. Anderson v. Timme, 70 Wis. 627, and cases there cited. Certainly, the defendant claiming title under a patent obtained by the executrix of such will and estate upon such an affidavit is in no position to dispute such title of the testator.

3. The affidavit mentioned, of such executrix, was confessedly false in so far as it stated that said “Bichard Prickett died intestate,” and in so far as it represented that she was entitled to a patent as the “only legal heir” of said deceased. It conclusively appears that she must have knowm that the deceased had left such will, since she was named as executrix therein, and the will had been admitted to probate for more than four years before the making of the affidavit, and during all that time she had acted as the qualified executrix of such will and estate. Under such circumstances, the obtaining of the patent by her was not only a gross fraud on the plaintiff, but a breach of trust deserving severe censure. Scott v. Reed, 33 Minn. 341.

4. It is claimed, however, that the judgment cannot be *205sustained, because the plaintiff has failed to establish affirmatively, not only that the defendant, but also his immediate grantor, Mrs. Eorney, had actual notice before such purchase .of such fraud or the existence and probate of such will. The court found that at the time of the execution and delivery of the deed from Mrs. Eorney to the defendant, and for a long time prior thereto, the latter knew that the land had' been duly devised to the plaintiff by the will, and that tjie will had been duly proved and admitted to probate. After a careful reading of the testimony we are constrained to believe that such finding is sustained by the evidence. One who purchases with knowledge of an outstanding claim of title, or information sufficient to put him upon inquiry, is not a bona fide purchaser within the meaning of sec. 2241, R. S. Rowell v. Williams, 54 Wis. 639.

5. Is the want of such proof of actual notice to Mrs. Eorney at the time she received the deed from the executrix available to the defendant as a defense in this action? The devise of the land to the plaintiff, subject to the right of possession in the widow while she remained single, only became effectual upon the admission of the will to probate; but, when so admitted, it related back to the death of the testator, and must be treated as speaking from that moment. Sec. 2294, R. S.; Scott v. West, 63 Wis. 552. In legal contemplation, the devise took effect, and the plaintiff acquired the legal title to the land subject to such widow’s right, immediately upon the death of the testator. Sec. 2278, R. S.; In re Pierce, 56 Wis. 560; Newman v. Waterman, 63 Wis. 616. The widow continued in the possession, but such possession was subordinate to the plaintiffs legal title. It is true that all judgments, decrees, and orders rendered or made by any court in ’cases where the title to land may come in controversy may be recorded in the office of the register of deeds in the same manner and with like effect as conveyances. Sec. 2236, R. S. And it *206may be that such judgment, decree, or order, when so recorded, has the effect of a recorded conveyance within the meaning of sec. 2211, R. S. Cutler v. James, 64 Wis. 175, 177. Rut the statute defining the term “ conveyance,” as used in each of those sections, expressly excepts wills from their operation. Sec. 2242. That the statutes do not contemplate the recording of the judgment or decree of probate is further indicated by prescribing, in effect, specifically, that every wdll devising lands or any interest therein, when duly proved and allowed, shall have a certificate of such proof indorsed thereon or annexed thereto, signed by the county judge and attested by the seal of his court, and such attested copy shall be recorded in the office of the register of deeds. ' Sec. 2296. Such proof and allowance are the judicial sanction of the instrument as a will, and are “ conclusive as to its due execution.” Sec. 2294, R. S.; Newman v. Waterman, 63 Wis. 616. Being a judicial proceeding in rem, there is much force in the ai-gument that, even without being thus recorded in the register’s office, it is binding upon the property, and notice to the world. But it is not essential that we should here determine whether it is or not. To defeat the legal title held by an unrecorded conveyance under our statute, it must appear that the subsequent purchaser purchased “in good faith, and for a valuable consideration.” Sec. 2241, R. S. Since the defendant had actual notice of the existence of the will and the death of the testator at the time he took the conveyance, it is obvious that he cannot be entitled to the protection of that section, without showing that his grantor, Mrs. Forney, was such “ purchaser in good faith and for a valuable consideration.” Fallass v. Pierce, 30 Wis. 443. The defendant, therefore, could only make his plea of bona fide purchaser without notice available by alleging and proving that his grantor so purchased without such notice, and then completed her purchase by paying *207the consideration therefor and then receiving her conveyance. Everts v. Agnes, 4 Wis. 354, 65 Am. Dec. 314; Bross v. Wiley, 6 Wis. 485; Nantz v. McPherson, 18 Am. Dec. 216; Johnson v. Toulmin, 52 Am. Dec. 212; Cummings v. Coleman, 62 Am. Dec. 402; Thomas v. Graham, Walk. Ch. 117; Shotwell v. Harrison, 22 Mich. 410. Under the old practice such plea or answer was required to be very specific. Thus in Boone v. Chiles, 10 Pet. 211, it was said on behalf of the court that, “ in setting it up by plea or answer, it must state the deed of purchase, the date, parties, and contents briefly; that the vendor was seized in fee, and in possession; the consideration must be stated, with a distinct averment that it was Iona ficle and truly paid, independently of the recitals in the deed. Notice must be denied .previous to and down to the time of paying the money and the delivery of the deed; and, if notice is specially charged, the denial must be of all circumstances referred to from which notice can be inferred.” Whether the same strictness is requisite under the Code is immaterial here, since the defendant has neither attempted to allege nor prove that Mrs. Forney was such purchaser in good faith and for a valuable consideration. We must hold that the defendant has failed to establish his right to the land as such Iona fide purchaser without notice.

6. It is claimed that in any event the plaintiff has mistaken his remedy, which should have been in ejectment. But the patent gave to Mrs. Toule the apparent legal title of record, and some of the facts which make that title inequitable and fraudulent as against the plaintiff are not of record, and hence there is a necessity of establishing the plaintiff’s right to the land by an adjudication in this action. Spiess v. Neuberg, 71 Wis. 279.

7. The defendant insists upon his right to compensation for the improvements made and taxes paid upon the lands under his counterclaim and proofs. But the remedy given *208for such improvements upon such counterclaims under secs. 8096-3100, R. S., is only available in actions of ejectment, and not in an equitable action like this. Davidson v. Rountree, 69 Wis. 655.

By the Gourt.— The judgment of the circuit court is affirmed.