Bourne v. Wiele

• Decision Date: 12 January 1915
• Parties: BOURNE ET AL. v. WIELE ET UX.
• Court: Wisconsin Supreme Court

159 Wis. 340

150 N.W. 420

BOURNE ET AL.

v.WIELE ET UX.

Supreme Court of Wisconsin.

Jan. 12, 1915.

Appeal from Circuit Court, Sauk County; James O'Neill, Judge.

Action by Caroline Bourne and another against Christian Wiele and wife. From a judgment for defendants, plaintiffs appeal. Affirmed.

Action of partition. Plaintiffs claim to own an undivided one-tenth interest in 30 acres of farm land as the heirs at law of one Agnes Yost, who was one of the ten surviving children of Richard Wiele. The trial court found that the defendants had obtained title to the land by adverse possession. The facts appearing either by stipulation or by practically undisputed evidence were as follows: Richard Wiele was the common source of title, and owned the land up to the time of his death intestate in 1883. He had been married twice. By his first wife he had three children, Balthazar, Emma, and Agnes; the latter being the mother of the plaintiffs. By his second wife, Mary (who survived him), he had seven children, Christiana, Mary, Herman, Richard, Susan, Christian (the defendant), and Ida. Agnes Yost, the mother of the plaintiffs, died before her father. After Richard's death his widow, Mary, with her children, remained in possession of the premises, which were marshy pasture lands inclosed with a fence. May 31, 1898, the said Mary and the defendant Christian made a petition to the county judge, representing that Richard Wiele died seised of the premises in dispute, and leaving as his sole heirs Mary Wiele, his widow, and the nine children who survived Richard, but said nothing about Agnes or her children. On this petition without notice the county judge made a certificate to the effect that the land belonged to the said nine children in equal shares, subject, however, to the dower right of the widow. This certificate was recorded on the same day in the proper register of deeds office, and also on the same day all of said nine children quitclaimed their right, title, and interest in the premises to their mother, Mary, which deed was recorded some months later. Mary paid the two stepchildren $50 each for their interests, but the other children executed the deed without consideration. After the making and recording of said certificate and deeds the widow remained in possession of the premises, claiming title until June, 1904, when she conveyed the same by warranty deed to her son and his wife, the defendants in this action, who remained in possession claiming title adversely to any other right up to the time of the commencement of this action in September, 1913. The plaintiffs reside in Kansas, but for how long a time does not appear. It does appear, however, that the defendant Elizabeth, who was married to the defendant Christian in 1890, never had heard of the plaintiffs or of any children of Agnes Yost until the commencement of this action. The court held that the defendants had acquired title to the lands by adverse possession, and dismissed the complaint, from which judgment the plaintiffs appeal.Bentley, Kelley & Hill, of Baraboo, for appellants.

Grotophorst, Evans & Thomas, of Baraboo, for respondents.

WINSLOW, C. J. (after stating the...