Chase v. Woodruff

• Decision Date: 26 November 1907
• Parties: CHASE v. WOODRUFF.
• Court: Wisconsin Supreme Court

133 Wis. 555

113 N.W. 973

CHASE

v.WOODRUFF.

Supreme Court of Wisconsin.

Nov. 26, 1907.

Appeal from Circuit Court, Sauk County; E. Ray Stevens, Judge.

Action by Alvin Chase against Frank R. Woodruff and others. From a judgment for plaintiff, defendant Frank R. Woodruff appeals. Reversed, and remanded for new trial.

Action in ejectment, the complaint being in the usual form. The answer put in issue plaintiff's claim of title and pleaded title and right of possession in the defendants.

Both parties claimed title under the same grantor. The evidence was to this effect: March 4th, 1868, Julius R. Woodruff made a deed in due form and naming $1,000.00, as the consideration, purporting to convey lots 3 and 4, block 25 of the village of Baraboo, Sauk county, Wisconsin, to his daughter Jennie, a child by his second wife, then about 12 years old, and 120 acres of land to his sons by his first wife, Frank R. and Charles T., who were then of age or nearly so. It contained this language: “The intention is to give my sons equally, the above described farming lands, and to Sarah Jennie the house and lots in the village of Baraboo.” The lot in question was vacant and so continued till Frank took possession thereof in 1905. The deed was in possession of Jennie for many years prior to her death, which occurred April 2d, 1902. She left plaintiff, her husband, as her only heir at law, who obtained the deed as part of her effects and placed it on record March 8th, 1906. When it was made the grantor was a widower, but he married for the third time a few days thereafter. The third wife was living when this action was commenced. He died about two months before the deed was recorded. On April 19th, 1905, he made a second deed of the property in question to Frank, who knew the first deed was outstanding. His deed was recorded May 5th, 1905. Immediately after Frank got the deed he took possession of the lot, built a dwelling house thereon and occupied the same. He enjoyed the use of the premises continuously for over a year. After Jennie died Frank inquired of plaintiff as to the whereabouts of the first deed, and was told by the latter that he did not know where it was. Thereafter Frank and his father kept track of whether the old deed made its appearance of record.

There was no evidence that the father left a will or that the property in question consisted of a homestead or a part of one, nor direct evidence as to when the first deed was delivered to Jennie. Frank testified, under objection, that he saw it in his father's possession about 1874. He was called as a witness for plaintiff and allowed to testify that his father told him the deed was delivered to Jennie. Under objection, on cross-examination, he was allowed to testify to a declaration by the father, made at the time of the conversation testified to in chief, that the deed was given to Jennie for safe-keeping, because he did not wish to have it lay around the house. That evidence in deciding the case finally was held incompetent. Plaintiff did not endeavor to obtain possession of the lot or make any claim thereto till after Frank made his improvements. There was no evidence showing that Jennie made any claim to the property during her lifetime, or that she or her husband ever paid any taxes thereon, and no evidence as to whether the deed was relied on by Frank and his brother for title to the farm lands, nor any evidence that the deed was ever recognized by any one as affecting the title to any of the property described therein till it was placed on record as aforesaid. There was evidence undisputed that the use of the property as improved was worth from $15.00, to $16.00, per month, and unimproved worth, possibly, $20.00, per year.

At the close of the evidence both sides moved for a directed verdict. The defendant's motion was denied. The plaintiff's motion was granted upon the ground that there was no evidence to efficiently rebut the prima facie effect of possession of the deed by plaintiff's wife for many years prior to her death, and that such prima facie effect could only be efficiently rebutted by evidence establishing nondelivery of the instrument for the purpose of having it take effect, beyond any reasonable controversy. Judgment was rendered accordingly, the court fixing the damages for the unlawful withholding of the property at $28.00.Dithmar & Carow and Grotophorst, Evans & Thomas, for appellant.

H. E. Fitch (Goggins & Brazeau, of counsel), for respondent.

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

Respondent established title to the property in himself, if the deed to his wife was delivered to...