Brooks v. Dike

• Court: Wisconsin Supreme Court
• Writing for the Court: TIMLIN
• Citation: Brooks v. Dike, 156 Wis. 152, 145 N.W. 659 (Wis. 1914)
• Decision Date: 24 February 1914
• Parties: BROOKS ET AL. v. DIKE ET AL. IN RE BROOKS.

156 Wis. 152

145 N.W. 659

BROOKS ET AL.

v. DIKE ET AL.IN RE BROOKS.

Supreme Court of Wisconsin.

Feb. 24, 1914.

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.

Action by Mary D. Brooks and others by guardian against Henry B. Dike and others, and also a special proceeding by the same plaintiffs to have their damages assessed for the taking of land by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for defendant in the action, and an order dismissing the special proceeding, plaintiffs appeal. Judgment and order reversed and remanded.

In the action above entitled the infant appellants, claiming to be the owners in fee of the N. E. 1/4 of the N. W. 1/4 of section 22, township 48 north, range 14 west, except the right of way of the Eastern Railway Company of Minnesota thereon, and that such claimed premises are vacant and unoccupied except the right of way of the Minneapolis, St. Paul & Sault Ste. Marie Railway Company thereon, averred that the defendants Henry B. Dike and Mary E. Dike make some claim to all of said N. E. 1/4 of the N. W. 1/4 except these two right of way tracts, and demand judgment that the plaintiffs' claim be established against any claim of the defendants, and that the defendants be forever barred against having or claiming any right or title to the land adversely to the plaintiffs. In the special proceeding above entitled the same infants averred their ownership, at all times since July 29, 1903, of the same land, except the right of way of the Eastern Railway Company of Minnesota, and that during the years 1908 and 1909 the Minneapolis, St. Paul & Sault Ste. Marie Railway Company located, graded, and constructed its roadbed on their land, and has since maintained and operated its railroad upon that part of the 40-acre tract above described. That the said railroad company did so without having acquired title to the land, and without having instituted any proceedings for condemnation or other acquisition of said land, or any part thereof. The infants prayed for an order fixing a time and place for a hearing, and for the appointment of commissioners to appraise and determine the value of the land so taken by said railway and the damages sustained by petitioners. In the action after trial and hearing the court made findings of fact, beginning with the recital that the action was commenced on or about July 7, 1910, and the special proceeding on the same day, and that many, if not all, the questions of law and fact involved are common to both, and that the property alleged to have been taken by the railway company was so taken and the title held under a conveyance from the defendants Henry B. Dike and Mary E. Dike, his wife, to said railway company; the claim of title of said Henry B. Dike and wife to said land so conveyed was the same title claimed by them to the 40-acre tract in question. The parties having stipulated in open court to try said action and special proceeding together, the court made findings of fact which resulted in judgment for the defendants in the action and in an order dismissing the special proceeding. It appears without substantial controversy that on and prior to July 29, 1903, J. Cora Smith was the lawful owner of the land in question.

Findings are to the effect that on July 29, 1903, there was executed and delivered by J. Cora Smith to the infant plaintiffs, then aged 12 and 14 years, respectively, a deed including the land in controversy. At that time, and for a long time prior thereunto, the lands described in said deed were heavily incumbered with delinquent and unpaid taxes, and the 40-acre tract first herein described was sold in May, 1902, for the taxes of 1901, and in May, 1903, for the taxes of 1902, and the county of Douglas held the tax certificates for said two years, but thereafter sold and assigned them for value to the defendant Henry B. Dike, who obtained tax deeds thereon, which were executed in due form and recorded in the office of the register of deeds of the proper county on July 17, 1907. Under these tax deeds the defendants and the railway company claimed title, the railway company claiming under Henry B. Dike and wife by deed dated September 15, 1909, recorded September 17, 1909. J. Cora Smith made said deed to the infant plaintiffs voluntarily, without consideration, and with intent to hinder, delay, and defraud the holder of the tax certificates above mentioned of his lawful actions and rights to foreclose said certificates, and for the purpose of extending the time for redemption of said lands from the delinquent taxes represented by such certificates. It was further found that the alterations, changes, and erasures indicated by this deed were satisfactorily explained so as to admit the deed in evidence. The amount of taxes represented by the certificates purchased by Henry B. Dike with interest thereon and the amount of subsequent taxes paid or redeemed by him with interest thereon were found, and that the tax deeds to Henry B. Dike were issued on an affidavit of nonoccupancy, made on July 11, 1907, also that on that date, and for more than two years immediately preceding, a large portion of the land covered by the tax certificates and tax deeds, comprising more than half its area, was continuously surrounded by a substantial wire fence, and in the occupancy and possession of one Mrs. Carey by permission of the agent of the fee owner. Also that the Great Northern Railway was then, and for several years had been, in actual occupancy and possession of a right of way extending diagonally north and south across said 40-acre tract, and containing about 8 acres, and that no notice of the application for such tax deeds was given to or served upon any person, but such deeds were issued upon an affidavit of nonoccupancy dated July 11, 1907.

As conclusions of law the court found that the deed from J. Cora Smith to the infant plaintiffs of July 29, 1903, was made for the purpose of hindering and delaying the holder of the tax certificates mentioned of his lawful actions, and that said deed was and is illegal and void, also that the tax deed held by the defendant Henry B. Dike was illegal and void, but, notwithstanding this, that the plaintiffs...