Gerhardt v. Ellis

• Decision Date: 08 January 1908
• Citation: 114 N.W. 495,134 Wis. 191
• Parties: GERHARDT v. ELLIS ET AL.
• Court: Wisconsin Supreme Court

134 Wis. 191

114 N.W. 495

GERHARDT

v.ELLIS ET AL.

Supreme Court of Wisconsin.

Jan. 8, 1908.

Appeal from Circuit Court, Polk County; A. J. Vinje, Judge.

Action by Phillip E. Gerhardt against A. D. Ellis and others. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

This is an appeal from an order sustaining an objection to any evidence under the complaint for want of facts sufficient to constitute a cause of action. The action was brought by one of the heirs of the mortgagor against the mortgagee and his assigns in possession for an accounting for rents and waste, and to redeem. The complaint states in substance that plaintiff is a son of A. W. Gerhardt, who died intestate August 6, 1888, leaving him surviving his widow, A. W. Gerhardt, Jr., and the plaintiff; that deceased owned in fee at the time of his death the lands in question, and that the same descended to his heirs; that plaintiff has purchased the interests of the widow and A. W. Gerhardt, Jr., in said lands; that in March, 1888, deceased and wife executed a mortgage on said lands to defendant Ellis to secure an indebtedness of $50, with interest at 8 per cent., which indebtedness became due December 16, 1888; that between February 11, 1892, and June 4, 1895, the defendant Ellis attempted to foreclose said mortgage, and on June 4, 1895, caused the lands to be sold to himself for the sum of $210, which was but a small portion of their fair value, and that such pretended sale and report of referee who made the same has never been confirmed nor passed upon by any court; that the plaintiff is entitled to redeem said lands from said sale and mortgage; that on June 26, 1895, defendant Ellis caused to be executed to himself a referee's deed of said premises, and had the same recorded without the permission or consent of said heirs, or any of them, and without right, on November 1, 1896, entered into possession and thereafter retained and enjoyed the rents and profits of the same and cut and removed therefrom and converted to his own use a large amount of timber, logs, and ties of the value of over $600, and so remained in possession until May 10, 1901, at which time he executed to the defendant Carlson a warranty deed and delivered the possession of said premises to him, who thereafter held and enjoyed the use, rents, and profits of the same until April 29, 1904, at which time he executed and delivered a warranty deed of the premises to defendant Hanson, and Hanson took possession and has since held the use, rents, and profits thereof, and that Hanson has recently redeeded the premises to defendant Carlson, who is now in possession; that plaintiff is not yet 22 years of age; that he never knew that his father owned said lands, or that he was the owner of an equity of redemption therein, until about the time he arrived at the age of 21 years, and never learned of the facts entitling him to redeem until a short time before he commenced this action; that he does not know and has no account of the value of the use, rents, and profits of the premises which have been received and enjoyed by defendants, but is informed and believes that such use, rents, and profits amount to more than the indebtedness secured by said mortgage; that plaintiff has made due demand upon the defendants and each of them for an accounting, and that they have refused to account and have refused to allow plaintiff to redeem; that the value of the lands is $1,500; and that the pretended sale to defendant Ellis was unfair, fraudulent, and void, and greatly disproportionate to the value of the premises, and without notice to the plaintiff. The prayer is for an accounting for the rents and profits of the mortgaged premises, for the value of the timber cut and...