Bailey v. Tully

• Decision Date: 09 February 1943
• Citation: Bailey v. Tully, 242 Wis. 226, 7 N.W.2d 837 (Wis. 1943)
• Parties: BAILEY v. TULLY et al.
• Court: Wisconsin Supreme Court

242 Wis. 226

7 N.W.2d 837

BAILEY

v.TULLY et al.

Supreme Court of Wisconsin.

Feb. 9, 1943.

Appeal from an order of the Circuit Court for Waupaca County; Herman J. Severson, Judge.

Reversed.

This is an action commenced on October 13, 1937, by Herbert L. Bailey, plaintiff, against Russell A. Tully and Annis Tully, his wife, defendants, and M. B. Scott, administrator of the estate of Maude H. Downey, deceased, seeking an adjudication (1) that certain real and personal property constitutes assets of the estate of Maude H. Downey, deceased; (2) that defendants, Russell A., and Annis Tully, account for the rents and profits during the time of their possession of the same; (3) that M. B. Scott amend the inventory of the estate of Maude H. Downey to show her ownership of the property at the time of her death and require that notice of final settlement of the estate be given and the estate settled and final decree entered assigning the property to the heirs of the estate.Defendant filed an answer and thereafter an amended answer.For the present, it will only be necessary to state that the amended portions of the answer set up as a defense the judgment of the California court ordering plaintiff to convey to the defendants, Tullys, the property involved herein.There was a motion to strike such portions of the defendants' answer as rely upon the California judgment as a defense.On April 2, 1942the trial court entered an order striking these portions of the answer.The defendants, Tully, appeal.Such further facts as are necessary to an understanding of the legal issues will be stated in the opinion.

Edward J. Hart, of Waupaca (Brazeau & Graves, of Wisconsin Rapids, of counsel), for appellants.

Browne & Browne, of Waupaca, and Sanborn, Blake & Aberg and Edwin Conrad, all of Madison, for respondent.

WICKHEM, Justice.

Prior to December, 1930, the property involved in this action was owned by Dan Downey and Maude Downey, his wife.At about that time Downey and his wife executed a deed of the premises (which also conveyed personal property) to defendant, Russell A. Tully.This deed was duly recorded on March 11, 1931.Maude Downey died June 9, 1936, leaving as her heirs Herbert L. Bailey, plaintiff herein, Mary E. Potter and Mabel L. Howard, the former being a brother, and the latter sisters of the deceased.Russell A. Tully is a nephew of Maude H. Downey and the son of Mabel L. Howard.Prior to the death of Maude H. Downey, Russell A. Tully executed a deed reconveying the property to Maude H. Downey.This deed was dated March 10, 1931, acknowledged August 3, 1931, and was never recorded.Tully married defendant, Annis Tully, on September 6, 1935, and thereafter Russell and Annis Tully executed a deed of the property to Maude H. Downey.Plaintiff claims that the deeds were delivered to Maude H. Downey for the purpose of conveying the title and beneficial interest to her and that she was the owner of the property at the time of her death.Defendants claim that the deeds were executed to enable Maude H. Downey to sell the property more conveniently as agent of Russell A. Tully, that the deeds were never delivered to Maude H. Downey and did not pass title to the real estate.Defendants, Russell A. and Annis Tully, began an action in the state of California against Bailey and Mary E. Potter asking to have the deeds cancelled and annulled, and the defendants enjoined from making a claim thereunder.Personal service was had on Herbert L. Bailey and Mary E. Potter in California.The latter appeared and contested the action which resulted favorably to the Tullys in the trial court, a decree ordering a conveyance to the Tullys being entered.After the commencement of the California action, Bailey attempted to start an action in the Circuit Court for Waupaca County but did not get service until after the trial court had decided the case in California.After getting service in Wisconsin, Bailey appealed the California judgment to the District Court of Appeals, which ruled adversely to him.46 Cal.App.2d 195, 115 P.2d 542.The original answers in this action were served prior to the determination of the California Appellate Court and after that decision defendants amended the answer setting up the entire California proceedings as a plea in bar.Mary E. Potter released her claim pursuant to the judgment of the California court and the other heir, Mabel Howard, had released her claim to Tully prior to the institution of the California action.The motion to strike and the court's ruling thereon raise the question whether this court will recognize and give effect to the decree of the California court.

Appellants claim that in the California action the California court had jurisdiction of plaintiff, Bailey, and could clearly compel him to execute a deed of conveyance to defendants; that it is the law and policy of the state of Wisconsin, as evidenced by the decisions, to enforce a judgment in equity rendered in another state requiring something to be done in respect of real estate in Wisconsin.It is conceded by appellant that the state of California has no jurisdiction, even when it has complete personal jurisdiction of the parties, to render a judgment which affects real estate in Wisconsin.On the other hand, respondent contends that the decree of the California court is not one to which Wisconsin is required, or should give full faith and credit, or the effect of res adjudicata.It is further claimed that the findings supporting the judgment are not conclusive.This claim is founded upon the propositions(1) that the California court could not by its decree transfer an interest in land in Wisconsin; (2) that while the action in the California court was in personam, it assumed to quiet title to Wisconsin land.

The sole remaining question, according to respondent, is whether since land is the subject of the action, and since the land was located in Wisconsin, the findings of the California court are conclusive here.In...