Dorer v. Hood

88 N.W. 1009, 113 Wis. 607, 1902 Wisc. LEXIS 43

Opinion

The following opinion was filed January 28, 1902:

BaedeeN, J.

There is no certificate that the bill of exceptions contains all the evidence. There is, however, at the close ■of tbe testimony, tbe following recitation: “Which was all tbe •evidence in tbe case.” In Erdall v. Atwood, 79 Wis. 1, and in many subsequent cases, this court held that a statement substantially in tbe form given is equivalent to a certificate of tbe trial judge that tbe bill contained all tbe evidence. We should so treat it in this case, but for tbe fact that such statement is impeached and disputed on tbe face of tbe bill. It shows that plaintiff offered in evidence tax receipts for six different years, wbicb were marked “Exhibits 1 to 6, inclusive.” None of these receipts aré found in tbe bill, nor is any abstract or summary of their contents given. Tbe same is true of certain plans and specifications of tbe bouse built by plaintiff, tbe value of wbicb bouse be was seeking to recover. Tbe plaintiff offered in evidence tbe record and files in tbe estate of Thomas Stewart, deceased, none of wbicb are contained in tbe bill. These items of evidence are material to some of tbe questions raised by appellant, and, without their presence in tbe record, we are unable to ascertain tbe facts or reach an intelligent conclusion. Tbe recitation that tbe bill contains all tbe evidence being disputed by facts appearing on tbe face thereof, we are compelled to treat tbe ease, as to all questions dependent upon such facts, as though such recitation were false, and to indulge in every legal intendment to support tbe judgment.

Plaintiff claimed title under certain land contracts from Mary A. (Stewart) Haskins, and a deed executed by her executor under tbe direction of tbe county court. Tbe land contracts were in the ordinary form, in wbicb tbe grantor covenanted to convey title by “a good and sufficient deed” free from all incumbrances except taxes. Tbe deed recites the contract, and that it was made pursuant to a judgment of the •county court directing a conveyance according to tbe terms thereof. Tbe granting clause in tbe deed purports to convey “all tbe right, title, and interest of tbe said Mary A. Has-kins, deceased, in and to tbe said real estate.” The defendant argues that tbis deed does not give color of title, and therefore plaintiff has not brought himself within the provisions of sec. 3096, Stats. 1898. This statute only allows claims for improvements made by a party in possession while holding adversely by color of title, asserted in good faith, founded on descent or any written instrument. Color of title, as said in Edgerton v. Bird, 6 Wis. 527, is “that which in appearance is title, but which in reality is no title,” and it was accordingly held that a tax deed which was void on its face was admissible to show color of title in defendant, and bring him within the protection of the statute of limitations. The chief ground of complaint made by defendant is that the deed only purports to convey the right, title, and interest Mrs. Haskins had in the premises. This limits the argument to a mere inspection of the deed itself. Plaintiff’s alleged title is based upon his contracts, his deed, and the statute under which it was executed. The statute (sec. 3911) declares the legal effect of a deed executed by an executor pursuant to a contract made by his decedent. It says that “every such conveyance shall be effectual to pass the estate contracted for as fully as if the contracting party himself were still living and then executed the same.” .The estate contracted to be conveyed was an estate in fee simple. The question is not what was the estate actually conveyed, but rather what was the estate apparently conveyed, in view of the contracts, the deed, and the statute. Mrs. Haskins supposed herself to be the owner of the property in fee simple; at least, that is the plain inference to be drawn from the fact that she contracted to convey it in 1893. She had a solemn adjudication of that fact by a court of record. This distinguishes this case from Falck v. Marsh, 88 Wis. 680. In that case the life tenant made a quitclaim deed of his interest to the person who sought to counterclaim for improvements against the claim of the owner of the reversion. This court held that the element of adverse possession was wanting, and denied a recovery. We have no hesi tancy in holding that the circumstances here presented are sufficient to sustain the finding of color of title.

The defendant further complains that the court excluded evidence as to the rents and profits which were properly a set-off against plaintiff’s recovery. To get this matter properly in mind, it will he necessary to refer somewhat to matters of history shown in this case. Thomas Stewart died in 1882, leaving a will in which he devised the use of his real and personal estate to his widow for life, provided she remain single, with a trust over for the benefit of the parties represented by the defendant. On June 2, 1887, the widow remarried. August 9, 1893, she made her first contract to sell the land to plaintiff, who then went into possession thereunder. Plaintiff’s deed was made July 19, 1897. January 10, 1898, defendant brought this action of ejectment, claiming the right to recover possession and for rents and profits. July 23, 1900, judgment was entered in his favor for a recovery of possession, for $999.17 for rents and profits, and $325.11 costs. Under sec. 3082, Stats. 1898, defendant might have recovered for rents and profits of the premises during the time they were withheld by the plaintiff, not exceeding six years prior to the commencement of the action, or from January 10,1892. The defendant first offered evidence, which was rejected, of the rental value of the land from January 10, 1892, to June 19, 1897, the date when plaintiff secured his deed from Mrs. Haskins’ executor. The defendant now claims that the coprt in the ejectment action only allowed him such rents and profits from the date last mentioned to the date judgment was rendered, and that he should now he permitted to cover the period mentioned in this action, and offset such rents against the plaintiff’s recovery. In the first place, it is impossible to tell from the evidence with any degree of certainty for what period the court in the ejectment action allowed a recovery for rents and profits. The defendant was entitled to claim for tb© six years prior to tbe commencement of bis suit for possession, and, if for any reason tbe court denied bis right to recover for a part of tbat period, tbat adjudication is binding upon bim until reversed or set aside. Davis v. Louk, 30 Wis. 308—312. A more troublesome question arises over tbe rejection of defendant’s offer to prove tbe rental value of the premises from tbe date of tbe widow’s second marriage to tbe time of tbe commencement of tbe ejectment suit. Counsel say tbat tbe court rejected such evidence on tbe ground tbat tbe widow was in possession of tbe farm as administratrix of tbe estate of her first husband, and liable to account for such rents as she received after her remarriage. As before stated, tbe papers and files in tbe Stewart estate were put in evidence, but are not preserved in tbe bill of exceptions. Tbat being tbe case, every presumption must be made in favor of tbe ruling of tbe trial court. We shall therefore presume, in absence of such files, and also of tbe files in the estate of Mrs. Haskins, which were also introduced and not preserved in tbe bill, tbat sufficient would have appeared therefrom to support tbe ruling of tbe trial court.

Defendant is further dissatisfied with tbe ruling of the court below on tbe question of plaintiff’s good faith in making bis improvements. lie argues against tbe validity of tbe “improvement act” with all tbe vigor and gravity as though it was an open question in this state. We do not so consider it. Pacquette v. Pickness, 19 Wis. 219 (decided in 1865), considered tbe question, and says:

“Similar acts have been in force in many of tbe states for more than half a century, and have been so uniformly held constitutional tbat we consider ourselves bound by tbe great weight of authority in their favor.”

Tbat decision has been acquiesced in for more than thirty-five years, and many cases have since been determined, recognizing tbe conclusion there stated. In this instance we feel entirely at liberty to continue to adhere to tbe alleged errors of our predecessors, and without the conviction possessed by counsel that the rule so established is bad law. Carrying the argument further, counsel asserts that plaintiffs improvements were not made in good faith, because most of them were made pending the ejectment action, and because a notice was served upon him about the time he got his deed that the “Superannuated Preachers” claimed the land. We need not repeat what was said in Zwietusch v. Watkins, 61 Wis. 615. It was there distinctly held that the commencement of an action of ejectment by the owner of land against a tax-title claimant was not inconsistent with good faith in the continued assertion of title by the latter under his tax deed, although such deed was void in fact. The defendant was therefore held liable for improvements put on the property pending the suit. Mere notice of an adverse claim is not considered, in other states which have statutes of similar general character, to forbid the conclusion that subsequent improvements were made in good faith. Griswold v. Bragg, 19 Blatchf. 94; Harrison v. Castner, 11 Ohio St. 339; Whitney v. Richardson, 31 Vt. 300; Wells v. Riley, 2 Dill. 566. Plaintiff had made his contract-to purchase and had fulfilled the conditions on his part before any notice was given him. We fully agree with the conclusion reached in the court below that the circumstances in suit do not show bad faith.

After the special verdict had been drawn some question seemed to have arisen whether plaintiff was entitled to improvements made by him while he had the land under contract. The verdict as originally drawn required the jury to find the value of the improvements from the date of his first contract to the, date of the ejectment judgment. As a matter of precaution, a question was added to the verdict asking the jury to separately find the value of the improvements made by the plaintiff from the date of the contract to the date he obtained his deed. The jury found such value to be $135. Afterwards, to avoid any question as to bis right thereto, plaintiff filed a remission of that sum from the total amount found by the jury. In instructing the jury as to their finding upon the added question, the court made use of language which is claimed to have informed the jury of the legal effect of their answer thereto, in defiance of the rule that such action is improper. Ryan v. Rockford Ins. Co. 77 Wis. 611; Coats v. Stanton, 90 Wis. 130—137; Kohler v. West Side R. Co. 99 Wis. 33-39. As we view -the case, however, this instruction, conceding the court overstepped legal bounds, becomes innocuous because the plaintiff was entitled to claim for improvements from the date he entered into possession of the premises under his contract. He entered into possession of the land claiming ownership under a written instrument. Where a party takes possession of real estate under a contract of purchase, and in pursuance of its terms, the deed of the vendor, when made, will relate back to the date of the contract. Schneider v. Botsch, 90 Ill. 577. In Sutherland v. Goodnow, 108 Ill. 528, it is stated, in substance, that when the time of the sale of land becomes material to protect the rights of parties, the conveyance, when executed in consummation of the sale, will have relation back, vest title, and be evidence of an executed sale as of the date of the contract pursuant to which it was executed. The vendee here held possession adversely to all the world except his vendor. He claimed the land pursuant to his written contract, and made his improvements, as he had a perfect right to do. If he carried out his contract, such improvements would redound to his benefit. Having fulfilled -his contract and obtained his deed, it relates back to the inception of his contract, and he becomes fully invested with the estate as it then existed, together with all intervening rights. The supreme court of Georgia held that when one bought land in good faith, taking a bond for title from one who represented himself to be the agent of the owner, such bond, with tbe signature of tbe owner thereto, by sucb person as agent, constituted good color of title, altbougb it was in fact a forgery. Miller v. Stines, 81 Ga. 655. See Garrett v. Adrain, 44 Ga. 274; Farley v. Smith, 39 Ala. 38. A statute of Iowa wbicb was in form tbat “when an' occupant of land bas color of title thereto, and in good faith has made any valuable improvements thereon, and is afterwards found not to be the rightful owner,” he shall be entitled to pay for such improvements in the manner therein provided, was construed by Judge DilloN in Litchfield v. Johnson, 4 Dill. 551. The party entered into possession of land in good faith, and made improvements before he obtained color of title, and the question was whether he was entitled to pay ■ for them, or was limited to such as he had made after he had obtained color of title. The court ruled that he was entitled to all improvements made on the theory that the statute was remedial, and entitled to a fair, and even a liberal, construction. The idea at the foundation of our statute, is that if a party has entered into possession of land, and while holding adversely under color of title founded on a written instrument, and has made lasting and beneficial improvements on the land, the real owner shall not have the benefit of such increased value without paying for them. The claimant is not limited to such as he has made himself, but may also recover for such as were made by those under whom he claimed. As an offset thereto, the statute allows the rents and profits received by them, or either of them, to be considered, although the statute of limitations has run thereon. The purpose being to do equity between the parties, we see no reason why the statute should not be construed with fair liberality to that end. We accordingly hold that the deed to plaintiff by relation makes his contract sufficient color of title under the statute, and that the instruction complained of becomes immaterial and harmless. Many other questions are raised and discussed in the briefs. Some are dependent upon the omitted testimony, and cannot, therefore, be> considerecL Others are so inconsequential as not to require discussion. They must be considered as resolved against the appellant. Upon the whole record, we discover no legal ground for disturbing the judgment.

By the Court. — The judgment is affirmed.

A motion for rehearing was denied April 1, 1902.