Allen v. Brooks

• Decision Date: 02 October 1894
• Citation: 88 Wis. 265,60 N.W. 253
• Parties: ALLEN ET AL. v. BROOKS.
• Court: Wisconsin Supreme Court

88 Wis. 265

60 N.W. 253

ALLEN ET AL.

v.BROOKS.

Supreme Court of Wisconsin.

Oct. 2, 1894.

Appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Action by Catherine L. Allen and another, heirs of Peter Dean, against George L. Brooks, to set aside quitclaim deeds to the defendant on the ground of fraud and concealment. Judgment for defendant, and plaintiffs appeal. Affirmed.Reed, Grace & Rock and John O. Winship, for appellants.

Champ Green, for respondent.

ORTON, C. J.

A brief statement of the facts is as follows: Peter Dean, of the city of Duluth, Minn., died on the 4th day of January, 1884, seised of the following lands, to wit: The E. 1/2 of the S. E. 1/4 of section 13, township 48, range 13 W., and the S. E. 1/4 of section 34, township 49, range 14 W., situated in Douglas county, Wis.; also 20 lots in the city of Duluth, Minn. His sole heirs at law were his two brothers Thomas Dean and Dennis Dean; his sister, Mary Duryea; John J. Dean, Sarah A. Teasdale, and Catherine L. Allen, the children and sole heirs of his deceased brother John Dean; Johanna D. Hayes, Mary T. Saddler, and William Dean, the children and sole heirs of his deceased brother Alexander Dean. He left his last will and testament, which was afterwards admitted to probate, by which he bequeathed to his sister, Mrs. Mary Duryea, in copper and bank stocks and money, to the amount of $25,000, and devised to the city of Superior, Wis., the above-described 80 acres, and 160 acres of land situated at or near that place, to be used for public purposes, and to the village or city of Duluth the said lots situated therein, to be sold after one year and a half, and the proceeds thereof used by said city of Duluth for the purchase and beautifying of small parks, from five to ten acres in extent, throughout said city, for the use of the inhabitants thereof. At the time said will was made, there was no such municipal corporation as the city of Superior in Wisconsin in existence. The heirs knew the provisions of the will, and that there was at least a question whether the bequest to the city of Superior was valid for that reason. There was, however, at the time, a community commonly called the “City of Superior” within the corporate limits of the town of Superior, which was afterwards incorporated as the city of Superior by an act of the legislature in the year 1889. If the title had been unquestionable, said real estate in Wisconsin was reasonably worth the sum of $80,000; but, as the title was then involved in doubt, it had no marketable value whatever. The said Dennis Dean was the father-in-law of the defendant, George L. Brooks, and they resided near where the lands were situated. In the year 1889, the said Dennis Dean, being desirous of having proceedings instituted to test the legality of the will, called upon the said John J. Dean, who resided in Milwaukee, and who was the brother of the plaintiffs, and suggested to him to write to the defendant, whom he had requested to take an interest in the subject of this claim of the heirs, for the purpose of having such proceedings instituted. On the 27th day of March, 1889, the said John J. Dean, being fully authorized to act on behalf of the plaintiffs, wrote to the defendant on behalf of himself and the plaintiffs, and requested him to take the matter at once in hand, and push it through, and that all the heirs would join therein, and expressed the hope that he would take it, and realize something out of it for the heirs, as well as for himself, and offered to settle in any way he and his uncle Dennis might arrange it. On the 8th day of April, following, the said defendant wrote to the said John J. Dean, in reply, that Dennis Dean had said something about his purchasing some interest in the property for the purpose of contesting said bequest, and making arrangement to sustain the suit; that as to the value of the interests, in the present shape it is in, it is impossible to determine; that the Wisconsin land is wild, and about six miles from town, and has been platted, and many of the lots sold; and that, as he had requested it, he would make him a proposition to pay $300 for his and his sister's interest in the lands, to be conveyed by quitclaim deed, and if he perfects the title, he will pay to each one $300 more, making $1,200 in all. On April 15th, following, John J. Dean wrote the defendant, in reply, that his sisters (the plaintiffs) and himself agree to the proposition if he (the defendant) thinks that nothing better can be done. This is the effect of this correspondence, but not literal. John J. Dean communicated this arrangement to the plaintiffs, and thereupon the sale was consummated by their conveying to the defendant by quitclaim deed all their right, title, and interest in said Wisconsin real estate, and $200 was paid thereon to the plaintiffs; and on the 20th day of April, 1889, the defendant gave to the plaintiffs an agreement, in writing, in effect that, if he can and do acquire a title to the lands conveyed by them at this date by quitclaim deed, he will pay them each $300 more. The plaintiffs tendered to the defendant the money so paid and said agreement, and demanded a reconveyance of their said interests; and, upon his refusal so to do, they commenced this action to have said deed declared void, on the ground of fraud, covin, and...