229 Wis. 500 | Wis. | 1938
The plaintiff alleges in an amended complaint that on September 17, 1934, Jennie R. McNulty died intestate, seized in fee and possessed of an undivided one-half interest in the land involved herein, and that he is the duly appointed and qualified administrator de bonis non of her estate, against which claims have been filed and allowed which, as well as the funeral and administration expenses, are unpaid; that the estate has no other assets than the land ; and that while the estate was seized of the land, the defendant entered into possession on March 24, 1937, and refuses to surrender the same to the plaintiff. The defendant denied, in her verified answer, that Jennie R. McNulty was seized or in possession, at the time of her death, of any interest in the land. Furthermore, in that answer and her affidavit in support of her motion for summary judgment, the defendant alleged the following facts by positive statements based on her own knowledge, — and not upon mere information and belief, — to wit: That on October 23, 1933, Jennie R. Mc-Nulty, for a full and adequate consideration, conveyed all of her interest in the land to Austin A. Hayden by a deed recorded on October 24, 1933; that there were then two docketed judgments against Jennie R. McNulty, — for $3,775.68 and $2,522.31, respectively, — which were liens on her one-half interest in the land; that the defendant, on March 24, 1937, in good faith and relying on the records in the office of the register of deeds, purchased that one-half interest from Austin A. Hayden in consideration of $450
In opposing the defendant's motion for summary judgment, the plaintiff filed his affidavit stating positively, as based on his, own knowledge, that he did not know the facts set out in his amended complaint except as to the indebtedness of the estate, until after he was discharged as administrator; and that when Jennie R. McNulty conveyed to Austin A. Hayden on October 23, 1933, she was insolvent or rendered insolvent by her deed, and that it was fraudulent and void under the Uniform Fraudulent Conveyance Act as to the creditors of her estate, who are mentioned in the amended complaint. In addition, but only upon information and belief, the plaintiff denied that the defendant was the owner of the undivided one-half interest of the lands described in the amended complaint, or that she purchased the same in good faith, and for a full and adequate consideration, or that she purchased them at all or that she has a conveyance thereto; that Jennie R. McNulty conveyed them to Austin A. Hayden for a full and adequate consideration, or that title thereto- was ever in him, or that the defendant purchased them from him, or that they were transferred to her by deed, or for a full and adequate consideration; and that the defendant, when she acquired the lands or redeemed them from the execution and tax sales, had no knowledge of the claim of the personal representative of Jennie R. McNulty. And in addition, but likewise only upon information and
On this appeal the plaintiff contends that defendant’s affidavit is insufficient as a basis for a summary judgment because it fails to show two things which are necessary under sec. 270.635, Stats., viz., (1) an affidavit of some person who- has knowledge thereof setting forth such evidentiary facts as shall show that her denials or defenses are sufficient to defeat the plaintiff; and (2) an affidavit of the moving defendant that the action has no- merit. In support of those contentions the plaintiff argues that there is no denial by the defendant or statement by her of any evidentiary facts in refutation or avoidance of the new matter set up in the plaintiff’s affidavit to- the effect that both deeds were voluntary and without consideration, and fraudulent as to the creditors of Jennie R. McNulty’s estate; that the deeds were executed and delivered with intent to defraud and to hinder and delay the creditors of the respective grantors, who were insolvent or rendered insolvent at the time of the transfers
The argument that the deeds do not describe the land in question and that the defendant has no conveyance thereto is based upon the fact that, although the land was duly described in each deed by correctly specifying the fractional quarter-sections and the half-sections of the sections in which it is actually located in a township numbered one in a range numbered two, in La Fayette county, the descriptions were insufficient and therefore defective because in respect to the township and range they read: “Township One (1),’Range Two (2) North.” Thus, in describing the township (which was correctly numbered), there was omitted the specification, which is usually necessary, as to whether the township is north or south of the base line; but there was the word “North” immediately after the number of the range, although in the public land system of the United States a range is neither north nor south of the applicable principal meridian, but can be only east or west thereof. Likewise in that system a township in a range can be only north or south of the applicable base line. Consequently the word “North” in the descriptions in the deeds is inapplicable in so far as its immediate context with the specified range would otherwise be considered of significance. That word is applicable only to a township, and was undoubtedly .intended to be used in that connection. However, in so far as the descriptions under consideration are concerned, the omissions to' designate therein in which direction “Township One (1)” is from the applicable base line, or “Range Two (2)” is from the applicable principal meridian are immaterial. In this court, as well as the lower court, judicial notice must be taken of the
All other assertions in the affidavits filed by the plaintiff in opposing defendant’s motion, in so far as they relate to material matters, are effectively refuted and denied in substance by the defendant’s positive statements as to evidentiary facts in her verified answer and affidavit, including the documents attached thereto. Those positive statements are in full compliance with the provision of sec. 270.635 (2), Stats., requiring the setting forth of “such evidentiary facts, including documents or copies thereof, ... as shall show that his denials or defenses are sufficient to defeat the plaintiff.”
On the other hand, the statements upon merely information and belief by the plaintiff, instead of positive statements of facts actually within his knowledge or the knowledge of some other affiant, were insufficient in view of provisions in the statute that a summary judgment may be entered for the moving party filing affidavits setting forth evidentiary facts
By the Court. — Judgment affirmed.