Gilbert v. Auster

• Decision Date: 08 May 1908
• Parties: GILBERT v. AUSTER ET UX.
• Court: Wisconsin Supreme Court

135 Wis. 581

116 N.W. 177

GILBERT

v.AUSTER ET UX.

Supreme Court of Wisconsin.

May 8, 1908.

Appeal from Circuit Court, Bayfield County; John K. Parish, Judge.

Action by W. H. Gilbert against Emil Auster and wife. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Among other references upon the part of the appellant were the following: Newton v. Marshall, 62 Wis. 8, 21 N. W. 803;Hungerford v. Redford, 29 Wis. 345;Railway Co. v. Clark, 101 Fed. 678, 41 C. C. A. 597;Dillingham v. Fisher, 5 Wis. 475;Shiver v. United States, 159 U. S. 491, 16 Sup. Ct. 54, 40 L. Ed. 231;Wadleigh v. Marathon Co., 58 Wis. 546, 17 N. W. 314;Peyton v. Desmond, 129 Fed. 1, 63 C. C. A. 651;Krakow v. Wille, 125 Wis. 284, 103 N. W. 1121.

Among other references upon the part of the respondent were the following: Knight v. Leary, 54 Wis. 459, 11 N. W. 600; Act June 3, 1878, c. 151, 20 Stat. 89, amended by Act Aug. 4, 1892, c. 375, 27 Stat. 348 (U. S. Comp. St. 1901, p. 1547); Cawley v. Johnson (C. C.) 21 Fed. 492;Jones v. United States (C. C.) 35 Fed. 561;Montgomery v. United States (C. C.) 36 Fed. 4;United States v. Budd (C. C.) 43 Fed. 630;Cornelius v. Kessel, 58 Wis. 237, 16 N. W. 550; section 4165, St. 1898; Bracken v. Preston, 1 Pin. 365;Gunsolus v. Lormer, 54 Wis. 630, 12 N. W. 62; 26 Am. & Eng. Ency. Law, 584, and note 2; section 2198, St. 1898.R. Sleight, for appellant.

Lamoreux, Shea & Cate, for respondents.

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

It appeared from the amended complaint demurred to that on January 14, 1902, the respondent Emil Auster, at the United States land office at Ashland, Wis., made a timber and stone cash entry under the laws of the United States of the southeast quarter of section 33, in township 46 north, of range 9 west. A patent by the United States to the said Auster was issued November 13, 1905. January 15, 1902, Auster and wife executed to the plaintiff a warranty deed of said land in the form authorized by section 2208, St. 1898. By mutual mistake of the parties to said deed the deed failed to contain an assignment or conveyance of the rights of action which had accrued or might accrue to Auster for trespass on said lands or for unlawful cutting or taking of timber from the same, although this was agreed upon between the parties and intended to be inserted in the deed. After January 15, 1902, the Central Lumber Company, a corporation, wrongfully entered upon the said premises and cut and removed much valuable timber therefrom. The land was at all times vacant and unoccupied. The defendants refused to execute a conveyance containing an assignment of rights of action for trespass. The appellant asked that the deed be reformed so as to include such conveyance or transfer. The complaint states no cause of action because there was no such right of action in the grantors which they could assign. The court below was warranted in refusing an ineffectual decree. Leffler v. City of Burlington, 18 Iowa, 361;People v. Mercein, 8 Paige (N. Y.) 47. See cases 16 Cyc. 126, 118. Defendant's interest in the land began on January 14, 1902, and he sold to the appellant the next day by warranty deed. When the patent issued to the defendant Auster on November 13, 1905, the title thereby conveyed inured to and vested in appellant by virtue of the warranty deed of January 15, 1902. Dillingham v. Fisher, 5 Wis. 475;Knight v. Leary, 54 Wis. 459, 11 N. W. 600. The title thereby conveyed carried an estate in fee simple and all right, title, and interest which the United States had in such land on January 14, 1902. Peyton v. Desmond, 129 Fed. 1, 63 C. C. A. 651;Gilbert v. McDonald, 94 Minn. 289, 102 N. W. 712, 110 Am. St. Rep. 368;Krakow v. Wille, 125 Wis. 284, 103 N. W. 1121. The right of action, if any, to recover for the trespass averred in the complaint was in the appellant, not in the respondent. Cawley v. Johnson (C. C.) 21 Fed. 492;Jones v. U. S. (C. C.) 35 Fed. 561;Montgomery v. U. S. (C. C.) 36 Fed. 4;Krakow v. Wille, 125 Wis. 284, 103 N. W. 1121;Gunsolus v. Lormer, 54 Wis. 630, 12...