Campbell v. Campbell

• Decision Date: 13 December 1887
• Citation: 35 N.W. 743,70 Wis. 311
• Parties: CAMPBELL v. CAMPBELL.
• Court: Wisconsin Supreme Court

70 Wis. 311

35 N.W. 743

CAMPBELL

v.CAMPBELL.

Supreme Court of Wisconsin.

December 13, 1887.

Appeal from circuit court, Outagamie county; GEORGE H. MYERS, Judge.

Action of ejectment by Robert Campbell against Olla M. Campbell. Defendant was the wife of Thomas R. Campbell, a brother of plaintiff. The premises in question were purchased by decedent and another at sheriff's sale in 1871. Thomas conveyed his interest to plaintiff in 1875, and, after a conveyance of the other half interest by the owner to plaintiff, the latter, in 1877, executed a power of attorney to Thomas to sell the whole of the premises in dispute. A few days before his death, in March, 1879, under this power from plaintiff and wife, Thomas executed a deed of the premises in dispute from his principals to one John Bottenseck, who at once conveyed the same to defendant. The cause was tried without a jury, and judgment rendered against defendant, from which she appealed.W. J. Allen, for appellant.

C. W. Felker, for respondent.

ORTON, J.

This is an action of ejectment, and the plaintiff proved his title in fee to the premises. The defense is in substance and in effect that the consideration of the purchase of the premises was paid by Thomas R. Campbell, a brother of the plaintiff, and the defendant, his wife, or both, and that the conveyances to the plaintiff were made in trust for his use and benefit. There was much evidence upon this issue, and we think the evidence tended strongly to show that the plaintiff furnished and paid said consideration. But all of this evidence was immaterial, in the view we are compelled to take of this case. If Thomas R. Campbell deeded or caused the premises to be deeded to the plaintiff without consideration, or either he or his wife, the defendant, or both of them, furnished the consideration for the purchase, and directed the deeds to be made to the plaintiff, it is pure and simple a trust, and nothing else, that the defendant seeks to establish against the absolute conveyances to the plaintiff. The statute of uses and trusts cannot be evaded by calling these supposed rights equities.

The defendant sought to prove an express trust in writing in these lands in favor of herself or her husband, and introduced in evidence a power of attorney from the plaintiff to Thomas R. Campbell, executed about the twentiethday of August, 1877, authorizing and empowering him to sell and convey said premises, in his name and for his use, in the form of an ordinary power, to an agent, to sell and convey lands, and, in connection therewith, a letter from said Thomas R. Campbell to the plaintiff, requesting him to execute and acknowledge said power of attorney, and return the same to him. In this letter occurs this clause: “The remaining undivided half of the 80 acres I purchased of Paul last winter, deeded...