Itzel v. Winn

124 N.W. 1033, 141 Wis. 645, 1910 Wisc. LEXIS 68

• Court: Wisconsin Supreme Court
• Decided: February 22, 1910
• Status: Published

Opinion

WiNsxow, O. J.

The respondents contend that the plaintiff’s claim is barred both by the judgment of the county court disallowing plaintiff’s contingent claim against the estate of . Mrs. Abbey and by the judgment of the circuit court in the former action of Winn v. Itzel, 125 Wis. 19, 103 N. W. 220, rendered pursuant to the direction of this court. As to the judgment of disallowance of the contingent claim, it seems clear that it cannot be held as res adjudicate/, in this case. It clearly appears that the claim filed in the county court was simply a claim to recover against the estate for breach of the covenant of warranty against incumbrances contained in the deed from Mrs. Abbey to the plaintiff, and that it was rejected simply because the county court held that deed to be a voluntary conveyance, based upon no valuable consideration but only upon love and affection, and hence upon familiar principles there could be no recovery upon the covenant of warranty. That controversy only involved the question of the legal liability of the estate upon the covenant of warranty. Neither the question as to the duty of the trustee, Winn, to discharge the mortgage, nor the question of the validity of the mortgage after its purchase by Winn with moneys of the trust estate, was actually or necessarily involved, considered, or decided in that case.

The action of Winn v. Itzel, however, did involve in substance tbe question involved in this case. Tbougb tbe action was an action of 'interpleader and tbe present is essentially an action to remove a cloud upon title, botb were between tbe same parties and botb really involved tbe same general question, namely, tbe question as to tbe effect of tbe warranty deed before mentioned, and whether it became tbe duty of tbe trustee, by reason of tbe execution and delivery of tbat deed, to transfer to Miss Itzel tbe legal title of tbe premises in dispute free of incumbrances. It is true tbat tbe former action contained a larger question, namely, tbe question whether tbat deed was obtained by fraud, and, if tbat question were to be decided in tbe affirmative, then tbe other questions dropped out of tbe case; but, on tbe other band, if tbat question were to be decided in tbe negative, then it became necessary at once to decide tbe other questions as to the duty of tbe trustee. This appears certain because tbe trustee made all the claimants parties and laid the whole controversy before tbe court and prayed for direction as to bis duty; tbe defendants Taylor and Mathews came in and denied tbe validity of tbe warranty deed and prayed tbat Miss Itzel be required to quitclaim her apparent title to them; while Miss Itzel came in and alleged tbe validity of tbe deed and claimed tbat it was tbe duty of tbe trustee, by virtue of tbe trust deed, tbe warranty deed, and tbe directions of Mrs. Abbey, to execute to her a good and sufficient deed of the premises free of all incumbrances, the very incumbrance now in question being named and described in tbe pleading. So it seems not to be doubtful tbat tbe issue whether tbe mortgage in question should be paid by tbe trustee was fully presented and litigated between these same parties in tbe former action. True, tbe circuit court did not decide tbe question, because it held tbat tbe deed was void and hence there could be no duty on tbe part of tbe trustee under it; but when tbe case came here and this court held tbe deed to be valid, then the question of tbe trustee’s duty under it became necessary to be decided. Examination of tbe briefs upon that appeal show that counsel on both sides devoted their entire attention to the question of the validity of the deed and said nothing about the detail results in case the deed were held valid. It seemed to be taken for granted that if the deed were valid the results were not doubtful, and it is very evident that both counsel and court considered that the validity of the deed, if established, called for an affirmative judgment directing the trustee what to do with the legal title which had been placed in his hands in trust. The- trustee had asked the court for direction as to his duty, the parties interested had asked for the same thing, and it was the duty of the court to-respond.

It is to be regretted perhaps that this court did not respond more explicitly to this call. The mandate was that the-judgment be reversed and the cause remanded with directions “to enter judgment directing the trustee to deed the property in dispute to the defendant Itzel.” It appears that judgment, was entered in the circuit court in these words and that the trustee has made a deed (presumably a quitclaim deed) of the premises to Miss Itzel, but that the mortgage is still outstanding, having been purchased by the trustee in February, 1900, out of the trust funds in his hands under the arrangement with the respondents Taylor and Mathews, which is fully set forth in the foregoing statement of facts. The question now is as to the construction of that mandate. Does it. mean that the trustee is to execute a bare- quitclaim, or that he is to execute an effective deed of the lot ? The mandate says he is to “deed the property in dispute.” Now the property in dispute very clearly was the lot, free and clear of the mortgage. This court certainly was not expecting to frame a judgment which would leave undecided vital questions for future lawsuits and only partially respond to the issues made by the pleadings. That the Court considered Mrs. Abbey’s, warranty deed as an effective exercise of the power of appointment which Mrs. Abbey reserved to herself under her deed ■of trust cannot be doubted, because under no other theory would it be the duty of the trustee to make a deed. But if it was an effective appointment, then it was an appointment with a direction to make the deed free of incumbrances, because it ■contained a warranty against incumbrances.

■We construe the mandate as a mandate to make an effective ■deed conveying the lot, and not a mere quitclaim conveying nothing but the equity of redemption after half or more of the property had been exhausted by incumbrances1. This construction becomes more reasonable also' from the fact that at the time the mandate was pronounced and ever since the trustee has been in possession of the mortgage by purchase with trust funds used for that purpose by the consent of the respondents. Thus it appears that the trustee was in position at that time and ever since to malee an effective deed of the property. When a person holding the legal title of real estate and a mortgage on the same real estate is commanded by a judgment to “deed” the same to a party who has1 by his pleading asserted his right to- a deed clear of incumbrances, it would seem that a fair construction of the word “deed” demands that he make an effective deed, not a deed which in effect reserves half the beneficial interest to himself. So we construe the judgment in the former action as requiring the trustee to make a deed clear of incumbrances, and hence decisive of the present action in the plaintiff’s favor upon that question.

The plaintiff also seeks to recover the taxes which she has paid on the premises during the time between the execution of the Abbey deed in 1898 and the date of the execution of the deed by the trustee in 1905, on the ground that during this period she was kept out of possession by the defendants wrongfully and deprived of the rents and profits, and that the wrongdoers should be compelled to reimburse her for the taxes paid during such period. We know of no legal -pifinciple which would justify such a recovery. Property owners must pay the taxes on their own property. If a wrongdoer takes possession of the property he is or may be liable for the rents and profits during his occupancy, but not for the taxes which the owner pays. The proof shows that as matter of fact a tenant was in possession during the whole time; that owing to a notice from the plaintiff the tenant paid no rent to the trustee except $9.19; and that the property was in so ruinous a condition that the trustee concluded it to be unwise to attempt to collect the rent by legal proceedings or to repair the property.

There should be a judgment against Wmn for the $9.19 so collected as rent, in addition to judgment declaring the property to be free from the lien of the mortgage in question.

By the GouH. — Judgment reversed, and action remanded with directions to render judgment for the plaintiff in accordance with the opinion.

BauNES, J., dissents.