Blaha v. Borgman

• Decision Date: 22 February 1910
• Citation: 124 N.W. 1047,142 Wis. 43
• Parties: BLAHA ET AL. v. BORGMAN.
• Court: Wisconsin Supreme Court

142 Wis. 43

124 N.W. 1047

BLAHA ET AL.

v.BORGMAN.

Supreme Court of Wisconsin.

Feb. 22, 1910.

Appeal from Circuit Court, Langlade County; John Goodland, Judge.

Action to quiet title by Andrew Blaha and another against H. G. Borgman. From a judgment granting partial relief, plaintiffs appeal from the whole judgment, and defendant appeals from a part thereof. Reversed on plaintiffs' appeal, and affirmed on defendant's appeal.

Action to quiet title. Answer, with counterclaim, asked same relief in behalf of defendant. Both plaintiffs and defendant deraign title from one C. F. Smith, defendant, by a sheriff's deed on execution under a judgment docketed in the circuit court of Langlade county, March 18, 1902; the plaintiffs, by two deeds from Smith, both dated prior to said March 18th, but delivered subsequently. These two deeds ran, respectively, to one John Hartl and John Lewis, an undivided half to each. It was claimed that Hartl's deed was in performance of a contract, resulting from correspondence, to convey the land upon consideration fully paid prior to the docketing of said judgment. The deed to Lewis was claimed to be in acknowledgment and execution of a parol trust agreement made at the time Smith obtained the land prior to 1892 to hold an undivided half thereof for Lewis and another. The court found the contract to convey to Hartl to be established by the evidence, and that he therefore had an equitable title to the property prior to the docketing of the judgment, and owned an undivided half by title superior to that of the defendant. The court further held that Lewis had no interest in the land prior to the docketing of the judgment, the parol agreement therefor being void, and that, therefore, the half interest conveyed to Lewis was in Smith, subject to the lien of the judgment, and by the later execution sale was transferred to defendant. Plaintiffs appeal from the whole judgment. Defendant appeals from that part thereof which establishes plaintiffs' title to an undivided half.Goodrick & Goodrick, for plaintiffs.

Nash & Nash, for defendant.

DODGE, J. (after stating the facts as above).

Considering first the plaintiffs' appeal: The judgment denying their title to the half interest covered by the deed to Lewis was predicated upon a finding reciting Lewis and Forbes' claim to an equitable one-half interest, but declaring that neither J. C. Lewis nor C. E. Forbes had, in fact, any legal or equitable right, title, or interest. We cannot consider this part of the findings other than a conclusion of law, for the evidence as to detail facts is undisputed. It appeared that for two or three years prior to 1892 Smith was buying tax titles, and thereby acquired the land in dispute amongst others. The testimony of Lewis is substantially that “myself and Forbes each had a quarter interest in such lands. Smith held the legal title. He held it pursuant to oral agreement between him, myself, and Forbes as to the subsequent disposition of the land. That agreement was that, as fast as the land was sold or redeemed, Smith was to receive one-half interest and Forbes and I one-quarter each or the other half.” Certainly, if the legal title were held by Smith under a written contract to the same effect as that shown by this evidence, Forbes and Lewis would be equitable owners of one-half, and their interest would be superior to any judgment or execution claim against Smith. Further, it appears without dispute that some time prior to 18th of March, 1902, Smith sent to Lewis a deed of the undivided one-half, which, owing to some infirmity or incorrectness, was returned by Lewis, and subsequently, and after the docketing of the judgment, Smith delivered the deed in evidence, a quitclaim deed of an undivided one-half interest to Lewis. All these facts are established without reference to certain secondary evidence of correspondence, the admissibility of which is denied by defendant. No rule of law seems to be better settled than that a trust in land declared by parol only, although wholly unenforceable against the trustee, has yet enough of vitality, so that, if voluntarily executed by the trustee at any time, it will become validated as of the date of the original oral agreement. Such a deed is said to relate back to the oral agreement and to take precedence over any interest meanwhile derived from the trustee by another not an innocent purchaser for value. Main v. Bosworth, 77 Wis. 660, 46 N. W. 1043;Davenport v. Stephens, 95 Wis. 456, 458, 70 N. W. 661;Schumacher v. Draeger, 137 Wis. 618, 119 N. W. 305. The situation disclosed by the above-quoted evidence falls so completely within the reasoning and the principles...