Roehm v. Zehren

103 Wis. 287 | Wis. | 1899

MaRshall, J.

The judgment appealed from must be reversed: The facts show without room for controversy that plaintiff, at the time of the commencement of the action and of the trial, was the owner of the property in fee simple, free from any outstanding equity in defendant. Defendant’s claim of title depended solely on the idea that the judicial sale transferred to him an equitable title to the property which Jeakewitz possessed under -his land contract from Edwin Ellis; that the relation between defendant, as holder of such equitable title, and plaintiff, as holder of the legal title, was the same as between Jeakewitz and Edwin Ellis before the transfer of the former’s title by means of the judicial sale to defendant and the latter’s title by the conveyance alleged in the answer to have been made by him to plaintiff. "When it developed that Edwin Ellis did not have any interest in the property when he made the land contract to Jeakewitz, nor thereafter, and that no relations existed between Jonathan S. Ellis and Jeakewitz giving the latter any right, title, or interest in the property, the defendant’s case wholly failed, and the verdict should have been directed for plaintiff instead of -defendant.

The claim that defendant was in possession in part as a representative of plaintiff, because he represented all the lien claimants in the proceedings to enforce the liens, and that, as one of the jointly interested parties, plaintiff owed a duty to defendant inconsistent with claiming the legal title to the property adversely to such interests, is void of merit, if for no other reason, because defendant, as claimant under the judicial sale, did not pretend to hold the interest thereby acquired other than for his sole use. In respect to the claim of title under Edwin Ellis and that under Jonathan S. Ellis, the parties were adversaries in every sense. Defendant is in no situation to claim equitable rights against plaintiff, since in his answer he insisted upon a judgment, denying to plaintiff the rights of a vendor under the land contract, which h'e was entitled to even on defendant’s theory of the case. As the evidence stood at the close of the trial there was but one proper course open for the court to pursue, and that was to direct a verdict in favor of the plaintiff.

By the Co'wrt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.