O'Dell v. Burnham

• Court: Wisconsin Supreme Court
• Writing for the Court: CASSODAY
• Citation: O'Dell v. Burnham, 61 Wis. 562, 21 N.W. 635 (Wis. 1884)
• Decision Date: 25 November 1884
• Parties: O'DELL v. BURNHAM AND ANOTHER, IMPLEADED, ETC.

61 Wis. 562

21 N.W. 635

O'DELL

v.BURNHAM AND ANOTHER, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed November 25, 1884.

Appeal from circuit court, Milwaukee county.

This is an appeal from an order sustaining a demurrer to the amended complaint, which stated, in effect, that April 9, 1874, the plaintiff was the owner in fee and in possession of 29 acres of land, worth $30,000. The plaintiff obtained her title to 19 52-100 acres of the same by a deed dated December 2, 1870, from George Burnham, and to 9 361-1000 acres of the same by a deed dated July 10, 1871, from Burnham, Rogers, and Becher. This property was clear of all incumbrances, except two mortgages to William E. Cramer, and was in the city of Milwaukee, and has increased so in value since April 9, 1874, that it is now worth $150,000. The plaintiff is the widow of Galutia O'Dell, who died April 26, 1870, and who at the date of his death was the owner in fee of the said 29 acres of land. The defendant Rogers has been an attorney at law since 1870, and has since that date been thoroughly acquainted with the situation and value of those 29 acres of land, and since the death of Galutia O'Dell (April 26, 1870) was the legal adviser of the plaintiff until after April 9, 1874, and had control of all the proceedings in the matter of the sale, settlement, and disposition of the estate of Galutia O'Dell. The plaintiff, on October 22, 1872, borrowed $9,000 of William E. Cramer, and on May 6, 1873, the further sum of $1,400, both of which sums ($10,400) were secured by mortgages on these lands. The defendant Rogers, with intent to cheat and defraud the plaintiff, commenced suits on November 26, 1873, as attorney for W. E. Cramer, to foreclose the said two mortgages, and on January 26, 1874, caused judgments of foreclosure and sale to be entered, and on March 21, 1874, brought suit for one Hilgenberg on a due-bill for $328.25, and solicited and secured other claims for collection against the plaintiff, and threatened to bring suits on them, and advised the plaintiff to sell said lands as quickly as possible or she would lose them.

The plaintiff, in March, 1874, became anxious to sell her lands, and sought purchasers, and received an offer from C. P. Larkin of $25,000, but Rogers dissuaded her from the sale by false representations, and the plaintiff left the sale of the property entirely to the judgment of said Rogers. In April, 1874, Rogers represented to the plaintiff that he had found a purchaser, one Newkirk, who would pay $18,000, cash, and advised the plaintiff to accept the offer. The plaintiff, on April 9, 1874, when ill and suffering from nervous prostration, executed a deed which conveyed said lands to Howard Newkirk for the expressed consideration of $18,000. This deed was recorded April 13, 1874. The plaintiff left the disposition of the money received on the sale wholly to Rogers, as her attorney. Rogers paid her on April 16, 1874, the sum of $1,500, and represented that the remainder of the money had been expended in the payment of the judgments and liens on her lands and her other debts. Howard Newkirk is a brother-in-law of Rogers, and is insolvent, and never furnished any money to purchase said lands, and did not know of the existence of the plaintiff or of her lands or of said deed until September, 1882. The entire indebtedness of the plaintiff did not exceed, on April 9, 1874, the sum of $12,500. On April 14, 1874, Newkirk, by Rogers, his attorney, deeded said lands, for an expressed consideration of $18,000, to defendantBurnham. The deed was recorded May 5, 1875. On April 15, 1874, Burnham deeded to Rogers an undivided one-half of the lands for the expressed consideration of $10,000. This deed was recorded May 10, 1875 Newkirk did not know of the deed to Burnham until September, 1882, and never received any consideration therefor. The deeds of Newkirk to Burnham and Burnham to Rogers were made and received by Rogers and Burnham for the purpose of defrauding the plaintiff out of her lands, and with a full knowledge on the part of Burnham of all the facts above alleged. Rogers did not pay the Cramer judgments of foreclosure, but on January 13, 1876, Cramer assigned them to Burnham and Rogers, and they are now unsatisfied of record.

The plaintiff first knew of the deeds--Newkirk to Burnham, and Burnham to Rogers--in July, 1876, and then suspected that Rogers had practiced some deceit upon her in the pretended purchase of the lands by Newkirk, and then notified her attorney, J. C. McKenney, to make inquiries for Newkirk, and endeavor to ascertain the facts in the matter; and McKenney made inquiries for Newkirk and endeavored diligently to ascertain the facts in relation to the pretended purchase by Newkirk. McKenney found Newkirk in September, 1882, and then the plaintiff first learned the truth in reference to the pretended purchase by Newkirk; and Newkirk, at that time, when informed by McKenney, first learned of the deeds,--O'Dell to Newkirk, and Newkirk to Burnham,--and thereupon, on September 30, 1882, gave plaintiff a release and quitclaim. Rogers and Burnham have not made any permanent improvements on the land, nor expended any money on it except for taxes, and have not conveyed, but have received large sums for its use and occupation, but the amount is unknown to the plaintiff. Rogers and Burnham hold these lands as trustees for the plaintiff, but now claim and pretend that they are the owners. The other defendants have some interest in the property, but hold under Rogers and Burnham. The plaintiff has been defrauded of her rights by the fraudulent practices of Rogers, and by reason of the fraudulent and unfair advantage taken of her by Rogers while acting as her attorney.

PRAYER FOR JUDGMENT.

(1) Cancellation of deeds, O'Dell to Newkirk, Newkirk to Burnham, and Burnham to Rogers.

(2) That Rogers and Burnham be compelled to convey the lands to the plaintiff, and account to her for the rents and profits.

(3) That the amount paid by Rogers and Burnham to the plaintiff, and on her account, may be ascertained, and plaintiff offers to repay it.

To this amended complaint George and Barbara Burnham jointly demurred, on the grounds that it appeared upon the face thereof (1) that the amended complaint does not state facts sufficient to constitute a cause of action; (2) that the action was not commenced within the time limited by law, to-wit, within the six years limited by subdivision 7, § 4222, Rev. St. Wis. 1878. On the hearing of that demurrer the court ordered that the joint demurrer of George Burnham and Barbara Burnham, his wife, to the plaintiff's amended complaint, be, and the same is hereby, sustained, with $10 costs. From that order the plaintiff brings this appeal.

J. C. McKenney and J. J. Sutton, for appellant.

Finches, Lynde & Miller, for respondents.

CASSODAY, J.

To hold, on demurrer to a complaint under subdivision 7, § 2649, Rev. St., that the action was not commenced within the time limited by law, it must “appear upon the face” of the complaint when the cause of action accrued, (section 4219,) and also that it was not commenced within the time limited. This being so, the return of the officer as to the time of serving the summons cannot be resorted to on such demurrer for the purposeof fixing the time when the action was commenced. But where the complaint alleges that an act was done on a certain day, it must be presumed that the action was not commenced until after that day. Prentice v. Ashland Co. 56 Wis. 345;S. C. 14 N. W. REP. 297. Here the complaint alleges the recording of the quitclaim deed from Newkirk and wife to the plaintiff, October 2, 1882. We must therefore assume that the action was commenced after that date. This being so, the question recurs whether the action was commenced within the time limited by subdivision 7, § 4222, Rev. St., which, with section 4219, Rev. St., are to the effect that an action for relief on the ground of fraud, in a case which was, on and before February 28, 1857, solely cognizable by the court of chancery, must be commenced within six years after the cause of action accrued, but that the cause of action in such case shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. It stands confessed that this is a case which, prior to February 28, 1857, was solely cognizable by the court of chancery.

The only remaining question under the statute is whether it appears upon the face of the complaint that the action was not commenced within six years after the plaintiff discovered the facts constituting the fraud. The facts alleged, if true, clearly show that the defendant Rogers, as attorney and legal adviser of the plaintiff, and after sundry deceits, false representations, and pretenses, finally, and on April 9, 1874, consummated a very gross and cruel fraud upon the plaintiff, while she was sick in bed, suffering from nervous prostration to such an extent as to disqualify her from doing business understandingly, whereby he secured to himself, or rather to himself and his co-defendant, Burnham, the land in question, then worth $30,000, and...