Kimball v. Baker Land & Title Co.

140 N.W. 47, 152 Wis. 441, 1913 Wisc. LEXIS 91

Opinion

EjerwiN, J.

We think tbe findings of fact are well supported, and shall therefore spend no time in discussing tbe evidence.

1. It is first insisted tbat tbe action is brought under sec. 3186, Stats., which provides tbat any person having tbe legal title to land may institute an action to quiet title. And it is argued tbat tbe plaintiff, not having proved a legal title, cannot recover in ¿this action. Under this bead tbe following cases are relied upon: Hamilton v. Beaudreau, 78 Wis. 584, 47 N. W. 952; Davenport v. Stephens, 95 Wis. 456, 70 N. W. 661; Broderick v. Cary, 98 Wis. 419, 74 N. W. 95; Fox v. Williams, 92 Wis. 320, 66 N. W. 357; and Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974. These cases do not reach tbe question now before us. They were all cases brought solely under tbe statute, where it was necessary, in order to recover, to show legal title in tbe plaintiff or party asserting tbe right to recover. In Hamilton v. Beaudreau, supra, it was held tbat where tbe action was brought under tbe statute, tbe plaintiff alleging in her complaint tbat she was tbe owner in fee, it was incumbent upon her to show title, as it was the only ground upon wbicb sbe could make a case. In Davenport v. Stephens, supra, it was held that where one bas legal title to land, whether in actual possession or not, he may maintain an action in equity to remove a cloud, where the invalidity of the hostile claim cannot be proved by any record but must be shown by other evidence. Broderick v. Cary, supra, holds that it is sufficient to satisfy the provisions of the statute requiring allegation of hostile title to allege facts from which the hostile claim of title or interest is raised as a necessary or reasonable inference, and that sec. 3186, Stats., as amended, has enlarged the equity powers of the court in actions to quiet title. Fox v. Williams, supra, also holds that the statute enlarges the equity jurisdiction and was “intended to provide an easy remedy in a class of cases which are not within the general equity jurisdiction of the court.” In Kruczinski v. Neuendorf, supra, it is ruled that “one having the legal title to land, though not in possession, may, independent of the statute, maintain a bill in equity to remove a clopd from his title.” The argument of appellant’s counsel is that, the legal title not being in the plaintiff, the action cannot be maintained. But, as we have seen from the cases referred to, the statute allowing the action to be maintained by one having the legal title is but an enlargement of the former rule in equity, and that equity still retains jurisdiction of actions to quiet title independent of the statute. The statute provides that any person having a legal title to land may maintain an action against any other person setting up a claim thereto, and if plaintiff shall sustain his title the defendant shall be adjudged to release, unless the defendant shall by answer disclaim and give a release to the plaintiff. The statute also provides that it shall be sufficient to aver in the complaint the nature and extent of plaintiff’s estate in the land, describing it, that plaintiff is in possession, or that said land is vacant and unoccupied and that defendant makes some claim thereto, and demand judgment that plaintiff’s claim be established against any claim of the defendant, and that defendant be barred, etc.

This court has held that one not in possession and having title may sue in equity to remove a cloud from his title independent of the statute. Pier v. Fond du Lac, 38 Wis. 470; Smith v. Sherry, 54 Wis. 114, 128, 11 N. W. 465; Smith v. C., M. & St. P. R. Co. 83 Wis. 271, 280, 50 N. W. 497, 53 N. W. 550; Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974; Suring v. Rollman, 145 Wis. 490, 130 N. W. 485. So it is plain that our statute, sec. 3186, merely enlarges the equity rule, and that the equitable action to quiet title existing before the statute is still in force. It is established by the pleadings that at the time of the commencement of the instant action the land in question was vacant and unoccupied.

The plaintiff therefore had the right to bring his action under the statute though not in possession, if he had a legal title, and he also had a right to base his right of action upon an equitable title under the rule in equity to remove a cloud from his title independent of the statute. The statute enlarges the rule in equity and gives a plaintiff the right to maintain the action although he has the legal title, in cases where the right did not formerly exist in equity. True, the plaintiff here set out in his complaint that he had the legal title. The defendant set up a counterclaim alleging that it had the legal title and that plaintiff claimed some interest in the land adverse to defendant and praying that plaintiff be barred and that defendant’s claim and title be established against the plaintiff and that plaintiff be adjudged to release to the defendant. The plaintiff replied to defendant’s counterclaim, setting up title by estoppel, which reply is set out in the statement of facts. The case was tried upon all the issues made by the pleadings.

Under tbe equitable remedy to quiet title as enlarged by statute in tbis state, there can be no doubt but that the pleadings on the part of the plaintiff are sufficient and that a good ease was made as appears from the findings supported by the evidence.

Belief in equity will be granted, where there is no adequate remedy at law, to remove a cloud from the title, on the ground that if the cloud be not removed it may be asserted to the injury or vexation or embarrassment of the plaintiff in the enjoyment or disposition of his property. Tiedeman, Eq. Jur. p. 636; Hager v. Shindler, 29 Cal. 47; Jones v. Smith, 22 Mich. 360; Daniel v. Stewart, 55 Ala. 278.

“In order that the jurisdiction to remove the cloud from the title may be exercised by a court of equity, either the interest or title must be equitable; or if the title be legal, then the remedies at law must be inadequate to the protection of the interest.” Tiedeman, Eq. Jur. p. 636; Grignon v. Black, 76 Wis. 674, 45 N. W. 122, 938; Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974; Pier v. Fond du Lac, 38 Wis. 470; Smith v. C., M. & St. P. R. Co. 83 Wis. 271, 280, 50 N. W. 497, 53 N. W. 550; Mash v. Bloom, 130 Wis. 366, 110 N. W. 203, 268; Goodell v. Blumer, 41 Wis. 436; Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118; Moore v. Cord, 14 Wis. 213; Roe v. Lincoln Co. 56 Wis. 66, 13 N. W. 887; Coe v. Manseau, 62 Wis. 81, 22 N. W. 155; Herren v. Strong, 62 Wis. 223, 22 N. W. 408; Hager v. Shindler, 29 Cal. 47; Gage v. Rohrbach, 56 Ill. 262; Suring v. Rollman, 145 Wis. 490, 130 N. W. 485, and cases cited.

Under the foregoing authorities and many others which might be cited it is clear that an action in equity, independent of the statute, may be maintained to remove a cloud from title where plaintiff has no adequate remedy at law. In the instant case'the appellant went to trial on the merits without objecting by way of demurrer or answer that the plaintiff had an adequate remedy at law. It is well settled by the decisions of this court that under such circumstances the objection that the plaintiff has an adequate remedy at law is. waived. Sied schlag v. Griffin, 132 Wis. 106, 112 N. W. 18; Hoff v. Olson, 101 Wis. 118, 76 N. W. 1121; Becker v. Trickel, 80 Wis. 484, 50 N. W. 406; Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Sherry v. Smith, 72 Wis. 339, 39 N. W. 556.

The findings being supported by the evidence, it remains only to be considered whether the plaintiff established title to the land. This depends upon whether the defendant is es-topped from claiming title. It is claimed by appellant that the record was open to Hanna when he purchased from the Blue Grass Land Company and that he should have known that the title stopped with Gorham and Bailey. But no abstract was furnished to Hanna, and he bought and paid for the land on the faith of the representations of Gorham and Bailey as president and secretary respectively of the Blue Grass Land Company, as well as on their personal representations that the land was owned by the company. Upon familiar principles Gorham and Bailey were estopped from claiming any right or title to the land as against Hanna. Lyndon L. Co. v. Sawyer, 135 Wis. 525, 116 N. W. 255; Marling v. FitzGerald, 138 Wis. 93, 120 N. W. 388; H. W. Wright L. Co. v. McCord, 145 Wis. 93, 128 N. W. 873; North v. Henneberry, 44 Wis. 306.

The doctrine of estoppel is legal and equitable. Veeder v. Guppy, 3 Wis. 502. The rule is well stated by Pomeroy in his valuable work on Equitable Jurisprudence, vol. 2 (3d ed.) § 804, as follows:

“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of- remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.” See, also, § 805.

There is no doubt but that Gorham and Bailey were es-topped, under the deed by the Blue Grass Land Company executed by them as officers of such company, from denying the title of the company. In addition to the authorities above cited we also call attention to the following: American F. L. M. Co. v. Walker, 119 Ga. 341, 46 S. E. 426; Heard v. Hall, 16 Pick. 457; Brock v. Rogers, 184 Mass. 545, 69 N. E. 334; Hale v. Morgan (Tenn.) 63 S. W. 506; Central C. & I. Co. v. Walker’s Ex’x (Ky.) 73 S. W. 778; Brown v. Edson, 23 Vt. 435.

Not only were Gorham and Bailey estopped from claiming .any interest in the land, but all persons claiming under them, with notice, as well. Snodgrass v. Ricketts, 13 Cal. 359; 16 Cyc. 710, 715. The privies of a grantor or grantee are es-topped to the same extent as the original parties to the deed. 16 Cyc. 715.

, The defendant in this case claims through conveyance from the trustee in bankruptcy, Gorham and Bailey having gone into bankruptcy, and, the legal title to the land in question appearing in their names, the trustee attempted to sell it. It is well settled that a trustee takes only the interest which the bankrupt had in the property, charged with all claims, legal and equitable, against it. All infirmities in the title, of the bankrupt follow such title into the hands of the trustee. Zartman v. First Nat. Bank, 216 U. S. 134, 30 Sup. Ct. 368; Davis v. Crompton, 158 Fed. 735. And it has been held that a trustee in bankruptcy takes the property subject to the es-toppels imposed upon it in the hands of the bankrupt which are not invalid as to creditors. In re Chantler C. & S. Co. 151 Fed. 952. See, also, Karger v. Steele-Wedeles Co. 103 Wis. 286, 79 N. W. 216; Lee v. Simmons, 65 Wis. 523, 27 N. W. 174.

There can be no doubt under the facts in this case but that the defendant was chargeable with notice and cannot be said to be an innocent purchaser for value. The defendant, claiming through Gorham and Bailey, has shown no title, legal or equitable.

It is also contended by counsel for appellant that the provision of sec. 3186, Stats., which says “judgment shall be rendered according to the rights of the parties,” entitles the appellant to a refund of delinquent taxes paid by it. We do not think that this provision in the statute has any such application. On the contrary, such refund of taxes could only be made under general established rules of equity. In the case at bar it does not appear that the appellant was a purchaser in good faith, and therefore was not entitled to á refund. It follows that the judgment must be affirmed.

By the Court. — Judgment affirmed.