Geisinger v. Beyl

• Decision Date: 17 November 1891
• Citation: 50 N.W. 501,80 Wis. 443
• Parties: GEISINGER v. BEYL.
• Court: Wisconsin Supreme Court

80 Wis. 443

50 N.W. 501

GEISINGER

v.BEYL.

Supreme Court of Wisconsin.

Nov. 17, 1891.

Appeal from circuit court, Polk county; R. D. MARSHALL, Judge. Affirmed.

Action of ejectment by Samuel Geisinger against August Beyl. Special verdict and judgment for plaintiff for recovery of the land. Defendant appeals.

The other facts fully appear in the following statement by LYON, J.:

The action is ejectment to recover certain land in Barron county. This is the third appeal herein. On the first appeal an order refusing to vacate a judgment for the plaintiff, based upon a verdict in his favor, was reversed, because such judgment was entered in violation of an order in the cause, which, although irregular, had not been vacated, and was not void, 44 Wis. 258. After the case was remitted, the circuit court refused to vacate such order, and gave judgment for the defendant. The second appeal was from such judgment. This court held the order erroneous, which proved fatal to the first judgment, and reversed the judgment for the defendant. The circuit court was directed to give judgment for the plaintiff on the verdict in his favor, which had not been disturbed. 71 Wis. 362, 37 N. W. Rep. 423. Pursuant to such direction, the circuit court gave judgment for the plaintiff. The defendant thereupon paid the costs, and took a new trial under the statute. Rev. St. § 3092. On the last trial the plaintiff proved title to the land in controversy, unless the same was divested by the taxdeeds hereinafter mentioned. He then put in evidence two tax-deeds, duly recorded, covering all the land in controversy, executed in 1871 by the proper officer to one August Steinke, and a quitclaim deed of the same land executed by said Steinke to the defendant in 1872. These tax-deeds are valid on their face, and their validity was not impeached for any error or irregularity in the tax proceedings upon which they are based. The deeds were offered for the purpose of showing that defendant asserted a claim of title to the land. The defendant testified that he purchased of the county the tax certificates upon which these tax-deeds were issued to Steinke, paid his own money therefor, and caused such deeds to be issued and recorded pursuant to a previous understanding with Steinke. The defendant introduced two other tax-deeds of the same land issued to himself, and duly recorded, one in 1872, and the other in 1874, each of which is also valid on its face, and neither of which was in any manner impeached for error in the tax proceedings. The plaintiff introduced testimony tending to show that, when defendant caused such taxdeeds to be issued and recorded, he was the agent of the plaintiff for the care and sale of the land in controversy. On this subject the testimony is somewhat in conflict. The jury found specially that the defendant was the agent of the plaintiff for the sale or care of the land when the tax-deeds were executed; that the defendant claimed title to the land by virtue of such deeds; and that the plaintiff is the owner and entitled to the possession thereof. No general verdict was returned. A motion by defendant for a new trial was denied, and judgment for plaintiff for the recovery of the land was ordered and entered. The defendant appeals from the judgment.Baker & Helms, for appellant.

Charles C. Willson, for respondent.

LYON, J., ( after stating the facts.)

I. The learned counsel for defendant earnestly contended in his argument that there is no testimony to support the finding of the jury that when the tax-deeds were executed defendant was the agent of the plaintiff for “selling or caring for the plaintiff's interest in the land in question.” We do not agree with counsel in this view of the testimony. Plaintiff resided at Rochester, in Minnesota, and the defendant resided in Barron county, in this state, near the land. The parties had considerable correspondence in 1869, 1870, and 1871 concerning the land. Some of the letters which passed between them are in evidence, and the contents of others, which had been lost or destroyed, were testified to on the trial. This testimony will not be repeated here. It is sufficient to say of it that, if true, it proves that the defendant was, at the times mentioned, the agent of the plaintiff, not only to look after and care for the land, but to sell it. In either case it was a violation of his duty to take a tax-deed of the land to himself or another, for it was his duty to protect and preserve plaintiff's interest therein. Hence the tax-deeds were a fraud upon the plaintiff, and vested in defendant no title to the land. At most, the purchase of the tax certificates by the defendant was a redemption of the land from the tax-sales thereof. A criticism is made upon the language of the special finding, which is in the disjunctive. It required the jury to find whether defendant was such agent for the purpose of “selling or...