Webster v. Killen

75 N.W. 88, 99 Wis. 525, 1898 Wisc. LEXIS 76

• Court: Wisconsin Supreme Court
• Decided: May 3, 1898
• Status: Published

Opinion

Winslow, J.

The question is whether the original owner of wild and unoccupied lands can maintain ejectment against one who disclaims title, but who at one time held a recorded tax-title deed of the lands, and, before the commencement of the action, had conveyed his title to another; such last-named conveyance not being recorded until after the filing; of the Us pendens. Upon both principle and authority, this question must be answered in the negative. The case of Sherman v. Bemis, 58 Wis. 343, seems to be conclusive upon the point. Ejectment may be brought against the actual occupant, or, if there be no occupant, against the person exercising acts of ownership or claiming title thereto or some interest therein at the time of the commencement of the action. R. S. 1878, sec. 3075. The defendants here neither occupied the property nor claimed any interest therein nor ownership thereof at the time of the commencement of the action. When they conveyed their interest to another, their recorded tax deed ceased to be an assertion of title in themselves. They had no power to compel the grantee to put his deed on record.

By the Court.— Judgment reversed, and action remanded with directions to render judgment for the defendants in accordance with this opinion.