Stewart v. Stewart

90 Wis. 516 | Wis. | 1895

Cassoday, J.

Upon the former appeal in this case it was. fully determined that the decree in the equity suit, entered June 12, 1819, and affirmed by this court (50 Wis. 445), to. the effect that the deed of February 3, 1860, was never in. fact delivered, and that the plaintiff in this action of ejectment, commenced May 27, 1891, and the defendant, are tenants in common, each owning an undivided one-half of the-premises, was conclusive. 83 Wis. 364. The questions now presented for consideration are as to the amount, if anything, the defendant, Archibald, should be allowed for improvements and expenditures, on his accounting for rents, issues, and profits during the many years that he and his. brother, James A., were in possession.'

1. Notwithstanding such conclusiveness of the decree in the equity suit, we are constrained to hold that the findings-to the effect that James A. and Archibald were in possession of said premises, holding the same adversely by color of title asserted in good faith, founded on a written instrument,, to wit,' the deed of February 3, 1860, from the time they so entered, down to the rendition of said decree, is supported, by the evidence, within the meaning of secs. -3096-3098, R. S. By such color of title is included a tax deed void upon its face. It also includes a tax deed void for reasons going to>the groundwork of the tax or assessment upon which such deed is issued. Zwietusch v. Watkins, 61 Wis. 620. Such, holding adversely is only to be by color of title thus asserted in good faith, and such color of title may be by a written instrument having an infirmity making it absolutely void, upon its face. Ibid. Otherwise, the statute would rarely afford any protection.

2. The mortgage upon the premises was paid by James A., and Archibald prior to the death of the uncle, but the circumstances under which it was so paid and discharged, as found, were such as to entitle them, in equity, to be subrogated to the rights of the mortgagee, even as against the uncle; and certainly the equities in their favor are as strong', if not stronger, as against those -who have taken title from him hy descent. Morgan v. Hammett, 23 Wis. 30; Blodgett v. Hitt, 29 Wis. 169; Levy v. Martin, 48 Wis. 198; Jones v. Parker, 51 Wis. 218; Carey v. Boyle, 53 Wis. 574; Wilton v. Mayberry, 75 Wis. 191; Baker v. Baker, 2 S. Dak. 261. In several of these cases, as here, the mortgage was discharged of record, hut equity kept it alive for the purpose of doing-justice and enforcing good conscience between the parties. Having in good faith paid the mortgage while thus in possession, James A. and Archibald should, in equity, be regarded as having thereby acquired an interest in the premises-commensurate with the amount of money so paid.

3. As indicated in the opinion of Mr. Justice Putney on the former appeal, the decree of June 12,1879, conclusively determined that the parties were tenants in common in the land, and that since that date, at least, their respective rights as to this land are such as grow out of their relationship as tenants in common. Since the statute of Anne,, which became a part of the common law of this country,, the right to maintain an action for accounting for rents, issues, and profits has generally, if not uniformly, been recognized in the United States. In this state that statute has been, in effect, re-enacted and extended. R. S. secs. 2199, 3082,. 3173, 3192. In such actions this court has repeatedly sanctioned the right of the tenant in possession to be allowed,, in such accounting, to be reimbursed for moneys expended in payment of taxes and extinguishing liens upon the common property. McLaughlin v. Curts’ Estate, 27 Wis. 644; Frentz v. Klotsch, 28 Wis. 312; Hannig v. Mueller, 82 Wis. 243, 244, and cases there cited. So the tenant in common in possession may, in an ejectment suit, be allowed to set off the value of necessary repairs and permanent improvements. Davis v. Louk, 30 Wis. 308; Clark v. Plummer, 31 Wis. 442; McCrubb v. Bray, 36 Wis. 333. So the tenant making such expenditures Ras been allowed to enforce contribution in an action of assumpsit or for an accounting. Gwinneth v. Thompson, 9 Pick. 31; Wheeler v. Wheeler, 111 Mass. 247; Ruffners v. Lewis's Ex'rs, 7 Leigh, 720; S. C. 30 Am. Dec. 513. Sucb contribution bas also been enforced in ^actions for partition. Robinson v. McDonald, 11 Tex. 385; S. C. 62 Am. Dec. 480, and notes; Western v. Skiles, 35 Fed. Rep. 674. Tbe proceeding in tbe case at bar to enforce contribution is equitable in its nature, and be'nce tbe principles mentioned are peculiarly applicable. Applying those principles to tbis case, and we must bold that tbe defendant, Archibald, was properly allowed to be reimbursed for one balf tbe moneys paid by bim and bis brother, James A., while in possession, on account of tbe mortgage, taxes, and interest thereon, and for one balf tbe value of tbe repairs .and improvements made by them or either of them. While some of tbe items allowed are not specifically provided for in secs. 3096-3098, R. S., yet, upon tbe broad principles of equity mentioned, tbe allowances made to tbe respective parties are substantially just and equitable, and mere technical errors, therefore, are to be disregarded. R. S. sec. 3829.

By the Oowri.— Tbe judgment of tbe circuit court is affirmed.