Davenport v. Stephens

• Decision Date: 16 March 1897
• Citation: 95 Wis. 456,70 N.W. 661
• Parties: DAVENPORT v. STEPHENS.
• Court: Wisconsin Supreme Court

95 Wis. 456

70 N.W. 661

DAVENPORT

v.STEPHENS.

Supreme Court of Wisconsin.

March 16, 1897.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Ann E. Davenport against David Stephens to remove a cloud. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to remove a cloud upon the title to land. The plaintiff is a married woman, the wife of Thomas Davenport. The defendant had a judgment, which was duly entered and docketed, against Thomas Davenport. The plaintiff owned a home with about 13 acres of land. In August, 1895, a real-estate agent negotiated a trade between the plaintiff and one William Keyes, whereby the plaintiff was to convey her home and land to Keyes, and to receive from him some money, a mortgage on the land which she conveyed, and a conveyance of two lots in one of the suburbs of the city of Madison. At the time when the conveyances were to be executed, the plaintiff's husband, Thomas Davenport, attended to represent his wife in the transaction. Through some misunderstanding of the agent, the mortgage and the conveyance of the lots were made to run to Thomas Davenport as mortgagee and grantee, respectively, instead of running to the plaintiff. The conveyance of the plaintiff's land to Keyes was delivered to Keyes, and the mortgage and conveyance of the lots were left with the agent for the plaintiff. This was on Saturday, August 31, 1895. As soon as the plaintiff learned that the mortgage and conveyance were to her husband as mortgagee and grantee, she refused to accept them, and demanded others, which should be in her name. For some reason it was inconvenient to obtain the execution of new conveyances from Keyes and wife; so it was finally arranged that Thomas Davenport should assign the mortgage, and make a conveyance of the lots to the plaintiff. And so it was done. This was on Monday, September 2, 1895. The defendant claimed that his judgment against Thomas Davenport became a lien upon the lots while the title was vested in Thomas Davenport, and sold the lots on execution. The action is brought to remove this cloud upon the title to the lots. The plaintiff had judgment, from which this appeal is taken.

Spooner, Sanborn, Kerr & Spooner, for appellant.

Bushnell, Rogers & Hall, for respondent.

NEWMAN, J. (after stating the facts).

Whether the defendant's judgment became a lien upon plaintiff's lots depends upon that other question whether Thomas Davenport ever had sufficient title in the lots for the lien of that judgment to attach to, during the passage of the title through him from Keyes to the plaintiff. No question is made that the plaintiff paid the consideration which was paid for the lots; nor that the conveyance was taken in the name of Thomas Davenport, without her knowledge and consent; nor is her acquiescence shown. On the contrary, she immediately demanded the title to be made to her. It is clear that in that case the conveyance vested in Thomas Davenport no interest in the land. It conveyed to him but the bare legal title, which he held only in trust for his wife. In equity she is regarded as the real owner. It is a trust arising by implication of law (2 Pom. Eq. Jur. §§ 1037-1043), and is excepted from the requirements of the statutes of frauds (Rev. St. §§ 2076, 2079; Kluender v. Fenske, 53 Wis. 118, 10 N. W. 370; 2 Pom. Eq. Jur. § 1042; Foote v. Bryant, 47 N. Y. 544;Reitz v. Reitz, 80 N. Y. 538;Haack v. Weicken, 118 N. Y. 67, 23 N. E. 133). If the trust had been expressed on the face of the deed from Keyes, the statute (sections 2073-2075) would have executed it at once by vesting the legal as well as the equitable title in the plaintiff. In that case there would have been nothing to which the lien of the defendant's judgment could attach. Hannig v. Mueller, 82 Wis. 235, 52 N. W. 98. The effect of...