Wisconsin Lakes Ice & Cartage Co. v. Pike & North Lakes Ice Co., 115 Wis. 377

Wisconsin Lakes Ice & Cartage Co. v. Pike & North Lakes Ice Co.

115 Wis. 377 | Wis. | 1902

Oassoday, O. J.

Counsel for the plaintiff seem to place some stress upon tbe admissions in tbe answer. But tbe only question presented for consideration upon this demurrer ore tenus is as to whether tbe complaint states a good cause of action, when liberally construed. Doud v. W., P. & S. R. Co. 65 Wis. 108, 25 N. W. 533; Docter v. Hellberg, 65 Wis. 420, 421, 27 N. W. 176. If, when so construed, it fails to state a cause of action, tbe omission cannot be supplied by allegations in tbe answer. Id.

Undoubtedly counsel is warranted in claiming that tbe complaint alleges all the facts required by tbe statute in an action *380of ejectment. Sec. 3077, Stats. 1898. This is conceded; but it is claimed on the part of the defendant company that the plaintiff mnst recover, if at all, on the strength of his own legal title, and that the complaint goes further, and alleges facts showing “the apparent legal title in the defendant” com- . pany, and hence that the plaintiff must, in order to recover, go behind such legal title, and show by extrinsic evidence that such apparent legal title has in equity no foundation; and therefore that the plaintiff’s remedy, if any, is in equity, and not at law. If such is the fair'meaning of the complaint, then some of the adjudications cited by counsel would seem to support his contention. Eaton v. Smith, 19 Wis. 537; Spiess v. Neuberg, 71 Wis. 279, 287, 37 N. W. 417; Prickett v. Muck, 74 Wis. 199, 207, 42 N. W. 256; Kinney v. Dexter, 81 Wis. 80, 51 N. W. 82. But we are constrained to hold that such is not a fair construction of the complaint. It alleges, in effect, that the plaintiff was during all the times therein mentioned “the owner in fee-simple absolute of the premises therein described;” that the defendant company claimed title to the lands under and by virtue of a “pretended deed” from the plaintiff to James S. Sanborn, dated May 25, 1900, and a deed from James S. Sanborn and wife to Dwight A. Sanborn, dated October 14, 1901, and a deed from Dwight A. Sanborn to' the defendant company, dated October 14, 1901, and that the defendant company made such claim under and by virtue of such conveyances, "and not otherwiseand that the plaintiff never executed nor delivered to James S. Sanborn any deed or conveyance of the property, or any part or parcel thereof, “but that it is, and has been at all times since the said 25th day of May, 1900, and prior thereto, the owner in fee-simple absolute of said premises, and entitled to the possession thereof.” Upon demurrer ore terms, and for tire purpose of this appeal, these allegations must be considered together and taken as true. Under these allegations we think it would have been competent for the plaintiff upon the trial to prove that *381the “pretended deed” of May 25, 1900, was “never executed or delivered” to James S. Sanborn by tbe plaintiff. Thus it bas been held by this court that it was error not to allow the plaintiff in ejectment to prove by parol evidence that a deed absolute on its face, under which the defendant claimed title from the same grantor as the plaintiff, was in fact given as security, and hence a mortgage. Kent v. Agard, 24 Wis. 378. So it has been held that a plaintiff in ejéctment may show that the defendant, who was his agent, had fraudulently allowed the plaintiff’s land to be sold for taxes, and taken the deed in his own name, and placed the same on record. McMahon v. McGraw, 26 Wis. 614. So it has been held that a plaintiff in ejectment might show that the deed under which the defendant claimed title had been executed for a nominal consideration by the defendant’s father, acting under a power of attorney from the plaintiff, authorizing him to sell and convey the land, which was of the value of three or four thousand dollars, for such sum or sums of money as to him should seem most to the advantage of the plaintiff; and hence that such deed might be treated by the plaintiff as fraudulent and a mere nullity. Meade v. Brothers, 28 Wis. 689; distinguishing Eaton v. Smith, 19 Wis. 537. Thus it is stated by a standard text-writer that:

“A deed which has been surreptitiously and fraudulently obtained from the grantor without his knowledge or consent does not, even as against a subsequent purchaser without notice, transfer title. A deed purloined or stolen from the grantor, or the possession of which was fraudulently or wrongfully obtained from him without his knowledge, consent, or acquiescence, is no more effectual to pass title to the supposed grantee than if it were a total forgery, and an instrument of the latter kind had been spread upon the record.” 1 Devlin, Deeds (2d ed.) § 267.

Among the cases cited in support of such propositions are Gould v. Wise, 97 Cal. 532, 32 Pac. 576, 33 Pac. 323; Henry v. Carson, 96 Ind. 412; Fitzgerald v. Goff, 99 Ind. 28; Hut*382ton v. Smith, 88 Iowa, 238, 55 N. W. 326; Davis v. Davis, 92 Iowa, 147, 60 N. W. 507; Rhodes v. School Dist. 30 Me. 110; Brown v. Brown, 66 Me. 316; Stevens v. Castel, 63 Mich. 111, 29 N. W. 828. See, also, Curry v. Colburn, 99 Wis. 319, 74 N. W. 778. We must hold that the complaint states a good cause of action, and that the demurrer ore ienus was improperly sustained.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.