Grady v. Cannon

• Decision Date: 27 March 1896
• Citation: 66 N.W. 808,92 Wis. 666
• Parties: GRADY ET AL. v. CANNON ET AL.
• Court: Wisconsin Supreme Court

92 Wis. 666

66 N.W. 808

GRADY ET AL.

v.CANNON ET AL.

Supreme Court of Wisconsin.

March 27, 1896.

Appeal from circuit court, Waupaca county; Charles M. Webb, Judge.

Action by Michael J. Grady and another against James Cannon and others. A demurrer was sustained to the complaint, and plaintiffs appeal. Reversed.

The plaintiffs, Michael Grady and Mary Royal, brought this action against the defendants, James Cannon, Albert E. Dedolph, John Moloso, George Hazer (administrator of the estate of Isaac Brown, deceased), and Mattie L. Cottrell and Edmund H. Gibson (as executors of the will of Horton Cottrell, deceased), for the partition of lot 9 in block 6, and lot 3 in block 14, in Millerd & Taft's plat of the city of New London, Waupaca county, of which premises Michael Grady died seised, September 8, 1860, leaving a widow, Hannah Grady, surviving, who died in 1891, and eight brothers and sisters surviving, as his heirs at law, one of whom, John Grady, died in 1871, intestate, leaving the plaintiffs as his heirs at law; and it seems clear that the plaintiffs succeeded to an undivided one-eighth interest, at least, as his heirs, which descended to their father from the said Michael Grady, in 1860. The statements of the complaint as to the conveyances and the descent of their interests in the premises are extremely uncertain, obscure, and confusing. It is alleged, however, as a matter of fact: That the parties to the action have the following undivided estates in the premises: (1) The plaintiff Michael J. Grady, one undivided one-seventh; (2) the plaintiff Mary Royal, one undivided one-seventh; (3) the defendant James Cannon, an undivided five-sevenths of the west half of lot 9; (4) the defendant Albert E. Dedolph, an undivided five-sevenths of the east half of lot 9; (5) the defendant John Moloso, an undivided five-sevenths of lot 3. And that a mortgage was given by the latter, August 6, 1892, to Isaac Brown, now deceased, on lot 3, for the sum of $175, now held by the defendant George Hazer, as administrator of the estate of the said Brown. That the defendant Albert E. Dedolph executed a mortgage on the east half of lot 9, but to whom is not stated, which was afterwards assigned to the defendants Mattie L. Cottrell and Edmund H. Gibson, as executors of the last will of Horton Cottrell, deceased. The plaintiffs prayed judgment for partition according to the rights of all the parties; and that the interest of the plaintiffs be set off freed from the lien of said mortgages; and that, if partition could not be had without material injury to the interests of the parties, then that a sale of said lots be made and a division of the proceeds be had between the parties, etc. The defendants John Moloso and George Hazer, administrator, etc., demurred, on the ground, among others, that several causes of action had been improperly united. Upon argument, the court made an order sustaining the demurrer on the ground thus assigned, giving the plaintiffs the right to amend on payment of costs, from which order the plaintiffs appealed.F. C. Weed, for appellants.

Phillips & Hicks, for respondents.

PINNEY, J. (after stating the facts).

It is reasonably clear that the interest in the lots which the plaintiffs took by descent from their father, as one of the eight heirs, was not less than one undivided eighth part of the whole, and, whether one-eighth, one-seventh, or two-sevenths, they have ever since retained it. They, therefore, became seised with their co-heirs of the lots in question, as tenants in common; and they had an undivided interest and title, as such, in and to every part and portion of both lots, and, as against their co-tenants and others interested in said lots, or either of them, or any part of either of them, had a right to maintain an action for partition, and to have their share or interest set off to them respectively, in severalty; and they have this right still, as against all persons who have acquired an undivided interest in said premises, or any part of the same, as subsequent purchasers from any or either of their co-tenants. The plaintiffs and their co-tenants...