Begole v. Hazzard

• Decision Date: 02 February 1892
• Citation: 51 N.W. 325,81 Wis. 274
• Parties: BEGOLE v. HAZZARD ET AL.
• Court: Wisconsin Supreme Court

81 Wis. 274

51 N.W. 325

BEGOLE

v.HAZZARD ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1892.

Appeal from circuit court, Wood county; CHARLES M. WEBB, Judge.

Action of ejectment by Josiah W. Begole, Jr., by H. C. Hetzel, his guardian ad litem, against W. W. Hazzard, E. J. Anderson, and M. J. Anderson. Judgment for plaintiff. Defendants appeal. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

This is an action of ejectment commenced in April, 1889. The complaint is in the usual form. The defendants claim title under tax-deeds, fair on their face, issued to them by the state and Marathon county August 28, 1878, and recorded on that day, for the taxes of 1873 and the sale of 1874. The plaintiff claims title under the following facts and conveyances, to-wit: Frank C. Begole entered the lands and obtained the title thereto prior to 1873; that March 26, 1877, Frank C. Begole resided at Wichita, Kan., having a wife and only three children, all of whom were infants; (one then sick who died in March, 1877, another named Paul, and the other the plaintiff, Josiah W. Begole, Jr.;) that, a short time prior to that time, he had lost another child; that March 26, 1877, Frank C. Begole, being in poor health and fearful of death, and while at St. Augustine, Fla., conveyed said lands by warranty deed dated March 19, 1877, reciting a consideration of $1,000, to his father, Josiah W. Begole, then and ever since residing at Flint, Mich., but who was then present; that April 1, 1877, Frank C. Begole died in Florida, and in August, 1877, Paul died; that December 28, 1888, the said Josiah W. Begole, by quitclaim deed reciting a consideration of “one dollar and other considerations,” conveyed said lands to his grandson, the plaintiff, Josiah W. Begole, Jr.; that February 19, 1889, the plaintiff, being a minor and less than 19 years of age, duly redeemed all of said lands from said tax-sale of 1874 by paying to the clerk of Marathon county, in which said lands were situated, for the use of the defendants and their heirs or assigns, the amount for which they were sold, with interest, fees, and charges, as prescribed by statute. A jury was waived, and the cause was tried by the court, and the facts were found, in effect, as stated, and as conclusions of law the court, in effect, found that said taxes were lawfully redeemed; that the defendants were not entitled to the possession of the lands under the taxdeeds; that the plaintiff was the absolute owner in fee, and entitled to the possession of the lands, and to judgment as demanded in the complaint, with six cents damages. From the judgment entered thereon, accordingly, the defendants bring this appeal.Brown & Prodt, for appellants.

Bump & Hetzel, for respondent.

CASSODAY, J., ( after stating the facts.)

At the time of taking the tax-deeds, August 28, 1878, under which the defendants claim the lands in question, the original and legal title to the same was in the plaintiff's grandfather, by virtue of the deed to him from the plaintiff's father, executed March 26, 1877, as mentioned in the foregoing statement. It is claimed, however, that the equitable right and title to the lands were then in the plaintiff, by virtue of a parol understanding and agreement had and made by the plaintiff's father and grandfather at the time of executing and delivering the deed mentioned, to the effect that the grandfather should take the deed and dispose of the lands for the benefit of Frank C. Begole's children, and the survivor of them, and that the plaintiff was such survivor. Such parol understanding and agreement the plaintiff was permitted to prove by his grandfather, against the objection of the...