Saladin v. Kraayvangere

96 Wis. 180 | Wis. | 1897

WiNslow, J.

It is unnecessary to decide whether the exemplification of the lunacy proceedings in the Pennsylvania court was admissible or not. The finding of the plaintiff’s-insanity may be stricken from the case, and still the plaintiff will be entitled to recover upon the other facts found' which are founded upon sufficient evidence. From these-findings it appears that in 1883 the defendant William and the plaintiff were tenants in common of the farm, he owning three fourths and she one fourth thereof, and he being in possession of the whole, acknowledging her interest. The-whole farm was subject to a mortgage for William's individual debt. Upon the foreclosure of that mortgage no notice of the proceedings was ever given to the plaintiff, and' she remained in ignorance of them, without fault on her part, until her return to Milwaukee, in 1893. William procured his brother-in-law to bid in the property at the foreclosure sale for the purpose of cutting off the plaintiff’s title, and then paid his brother-in-law the amount advanced, and took a deed of the premises. William remained in possession after the foreclosure the same as before, and gave the plaintiff no notice of any change in the character of his holding, or that he claimed any different or greater interest in the premises than before.

It is very well settled that a tenant in common in possession, who has once acknowledged his ootenant’s title, cannot claim to hold adversely until he has brought home to his-cotenant knowledge of the adverse nature of his holding,, unless his exclusive use and enjoyment has been so long continued as to justify a finding of acquiescence on the part of the other tenants. Sydnor v. Palmer, 29 Wis. 226; Stewart v. Stewart, 83 Wis. 364. We find no such state of facts here. The defense of the statute of limitations therefore cannot avail-the defendants, nor do we think the facts show that the plaintiff was guilty of laches. The plaintiff was an ignorant woman, unfamiliar with business, living at a great distance from the scene of action, and was very poor, with a family to support, and had been deserted by her husband. All of these facts were known to William. "While there seems to have been some mention made to her of a sale of the premises about to be made, it does not appear that she was notified that her title was in danger by foreclosure, nor did she ever receive a summons or paper of any kind in the foreclosure action. On the other hand, her name seems to have been intentionally spelled wrongly, so as to keep from her all knowledge of the foreclosure. She is not to be judged as a business man would be judged. Considering her situation and circumstances, we do not think she should be charged with laches for not anticipating that her brother would use the machinery of the law to cut off her share in her mother’s estate.

These observations dispose of both of the defenses made and necessitate affirmance of the judgment.

By the Gowrt.— Judgment affirmed.