Dreutzer v. Baker

• Decision Date: 18 March 1884
• Citation: 60 Wis. 179,18 N.W. 776
• Parties: DREUTZER v. BAKER.
• Court: Wisconsin Supreme Court

60 Wis. 179

18 N.W. 776

DREUTZER

v.BAKER.

Supreme Court of Wisconsin.

Filed March 18, 1884.

Appeal from circuit court, Door county.O. E. & Y. V. Dreutzer, for appellant, G. A. Dreutzer.

Henry T. Scudder, for respondent, Michael Baker.

TAYLOR, J.

This action was commenced by the appellant in justice court to recover damages of the respondent for breaking and entering the plaintiff's close, viz., the N. E. 1/4 of the S. E. 1/4 of section 11, township 27, range 26 E., in Door county. The defendant put in a plea of title, and the cause was removed to the circuit court. On the trial in that court the learned circuit judge directed a verdict for the defendant, to which plaintiff excepted, and afterwards moved to set it aside, and for a new trial.

The learned counsel for the appellant insists that the circuit judge should have directed a verdict in his favor, or, if not, that the case should have been submitted to the jury upon the evidence. Upon an examination of the evidence given on the trial, we are clearly of the opinion that the court erred in directing a verdict for the defendant. The evidence of plaintiff shows a regular chain of conveyances from the original patentee of the government to himself, and it further shows, or at least strongly tended to show, that he had been in the actual possession of said premises since the month of February, 1882, and that he was in fact in possession of the same at the time the defendant entered and did the damage complained of. The only defect in the plaintiff's title was that one of the intermediate conveyances under which he held his title, viz., the deed from A. W. Lawrence to one Charity Pinney, was witnessed by but one witness, and was not sealed. It was in form, however, a warranty deed, and acknowledged the payment of the whole consideration. After the receipt of such imperfect deed Charity Pinney conveyed by warranty deed to O. E. Dreutzer, and O. E. Dreutzer conveyed by quitclaim deed to the defendant, February 28, 1878; and claiming title under such chain of conveyances, the evidence strongly tends to show that the defendant took the actual possession of said land in February or March, 1882, and retained such possession until ousted by the defendant.

The evidence on the part of the defendant tends to show that Baker, the defendant, acting under the direction of George Pinney, made the entry complained of under a claim of title by said George Pinney. The title proved by Pinney was a tax deed from the county of Door to one J. Leathem, dated November 25, 1881, recorded the same day, and a quitclaim deed from Leathem, dated November 26, 1881, recorded September 11, 1882, to said George Pinney; and some evidence tending to show that Pinney took possession of said land by Baker, the defendant, who acted under and for him sometime in December, 1881. Upon this showing, notwithstanding the imperfect deed in the plaintiff's chain of title, he clearly produced evidence tending to show himself entitled to the possession of the land in dispute as against the original owners, and as against all other persons who could not show a better title. If the imperfect deed did not convey the legal, it did the equitable, title, and the right to the possession. That was so decided by this court in the case of Dreutzer v. Lawrence, 17 N. W. REP. 423.

The only other question in the case was whether the evidence of title produced by George Pinney defeated this title and right of possession of the plaintiff. It is evident that this title of Pinney was not so clearly established by the proofs as to justify the court in deciding as a question of law that the plaintiff's title was defeated. The tax title under which Pinney makes claim was dated and recorded November 25, 1881, and being fair upon its face it was prima facie evidence of title in the grantee and in Pinney, who claimed under him. But the evidence strongly tended to show that the plaintiff went into the actual possession of this land in the month of February, at any rate as early as the forepart of March, 1882, and retained such actual possession...