143 Wis. 524 | Wis. | 1910
The complaint averred that on December 26,, 1898, William H. Thomas of the county of Waukesha died leaving surviving him no widow but several children, among whom were the plaintiff and defendant. January 3, 1899r there was recorded in the office of the register of deeds a deed from said William H. Thomas conveying the property described therein, which, was his homestead, to the defendant,. McKay, and a copy of this deed is annexed to and made a part of the complaint. It bears date September 11, 1897,, states that it is in consideration of one dollar and “love and affection, the payment of my just debts and funeral expenses, the placing of a proper gravestone in the center of my burial lot in the village of Pewaukee, properly engraved with my name, age, the rank, company, and regiment in which I served during the late war.”' Description: “A lot of land in the southwest quarter of section 9, township 7 north, of range 19 east. This deed to be put on record after my death.” Otherwise it is a proper warranty deed. It is next averred that the deed was never delivered; that- immediately after the death of her father defendant entered into possession of said property, and although she lives in Walworth county she has ever since claimed and does still claim the exclusive ownership thereof, and has rented the land and enjoyed the profits therefrom.
The first alleged cause of action with all its imperfections is carried into and made part of the second. There is no averment that plaintiff’s ancestor had at the time of his death' any estate of inheritance in the land. There is no averment that he ever owned the land. We are asked to infer that the decedent owned the land because there is an averment that it was his homestead. But by law of this state (sec. 2983, Stats. 1898) there may be a homestead in a leasehold interest terminable at or prior to the death of the holder. The inference that there was an estate of inheritance from such an averment is therefore impossible. Next, the complaint not only fails to show that the plaintiff is in possession of the land or that the land is vacant and unoccupied, as required by sec. 3186, Stats. (1898), but it affirmatively shows that the defendant is in possession, hence that the plaintiff’s remedy is by ejectment.
Defects in the complaint: (1) It should be stated whether the deceased died testate or intestate, and if testate who were the devisees in his will. (2) It should be stated that he was seised of an estate of inheritance in this property at the time of Ms death. (3) The real estate should be described. (4) If the suit remains in equity, and if the averments of discovery are to avail the pleader as against the statute of limi
By live Gourt. — The order overruling the demurrer is reversed, and the cause remanded for further proceedings according to law.