Hannig v. Mueller

• Decision Date: 03 May 1892
• Citation: 52 N.W. 98,82 Wis. 235
• Parties: HANNIG ET AL. v. MUELLER ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 235

52 N.W. 98

HANNIG ET AL.

v.MUELLER ET AL.

Supreme Court of Wisconsin.

May 3, 1892.

Appeal from superior court, Milwaukee county; R. N. AUSTIN, Judge.

Action by Louise Hannig and the Joseph Schlitz Brewing Company against Fredericke Mueller, August Mueller, Laura Mueller, Frank Mueller, Herman Mueller, Robert Mueller, Ida De Haas, Clara Goetz, Emma Brotherhood, Tilly De Haas, Pauline Haas, Agnes Mueller, Edward Mueller, Mathilda Mueller, Elise Devitts, Gustav Mueller, Pauline Engel, Helena Pfeiffer, Rudolph Mueller, Helena Mueller, Edward Mueller, Robert Mueller, Julia Mueller, Amanda Mueller, Ella Mueller, and Charles Mueller. Judgment for defendants. Plaintiffs appeal. Affirmed.

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

This action was commenced March 5, 1890. The complaint, among other things, alleges, in effect, that on and prior to April 25, 1860, Carl Mueller and Elizabeth Mueller, his wife, and John F. W. Mueller and the defendant Mathilda, his wife, owned and held the legal title to the premises described, and executed and delivered to one Victor Koenemann a quitclaim deed of the same, which was recorded; that on the same day Koenemann and wife executed and delivered to the said John F. W. Mueller a deed of the same premises, which was recorded; that, on the same day, said John F. W. Mueller executed and delivered to said Carl and Elizabeth Mueller a bond, declaring, in effect, that Carl and Elizabeth Mueller are to have the use, rents, and profits of the premises, and that said John F. W. Mueller had thus received and held the title to said lands in trust for the benefit of the children of the said Carl and Elizabeth Mueller, except one of them, (Charles G.,) namely, August, John, F. W., “Eliza, (daughter,)” Julius, Pauline, Robert, and Rudolph; and further alleged, in effect, that the plaintiffs claimed title to said premises under and by virtue of a tax deed executed October 2, 1882, and recorded October 3, 1883, and other mesne conveyances; and prayed judgment that the plaintiffs' title to the premises be established as against the defendants, claiming as beneficiaries under said trust, or either of them, and that the defendants, each of them, disclaim and release all title, right, and claim to said premises adverse to the plaintiffs, and be forever barred therefrom. A portion of the defendants answered, and, among other things, by way of counterclaim, alleged that the plaintiff Louise is one of the children of the said Carl and Elizabeth Mueller, and is referred to in said bond under the name of “Eliza, (daughter,)” and asked to have the same reformed accordingly, and claimed that the purchase of the tax title by the said Louise, as one of the cotenants of said premises, was, in effect, a payment of taxes and an extinguishment of the tax deed. Other defendants answered by guardians and attorneys similarly. At the close of the trial the court found, as matters of fact, in effect, that April 25, 1860, Carl and Elizabeth Mueller, and John F. W. Mueller and wife, (their names being also spelled Miller,) claiming to hold the legal title to the premises described, deeded the same to Victor Koenemann, on that day, by quitclaim deed, which was recorded; that on the same day Koenemann and wife deeded said premises to John F. W. Mueller, (spelled Miller in said deed,) by deed, reciting a consideration of $500, which was duly recorded; that on the same day said John F. W. Mueller made, executed, and delivered to the said Carl and Elizabeth Mueller a certain bond or instrument in writing of the same date, reciting a consideration of $500, and a description of said premises as being the same described in said deeds, and declaring that the said Carl and Elizabeth should have the use, rents, and profits of said lands, and that the same was so deeded to him “in trust for the benefit of the children of the said Carl and Elizabeth Miller, (excepting Charles G. Miller, who has received his portion of the property of his said father, Carl Miller,) namely, August Miller, John F. W. Miller, ‘Eliza, (daughter,)’ Julius Miller, Pauline Miller, Robert Miller, Rudolph Miller, which above-described property shall be equally divided or be equally distributed among the said children above named, on the death of the said Carl Miller and Elizabeth Miller, his wife, according to the laws of the state of Wisconsin in such cases made and provided, of a person dying intestate;” with further agreements on the part of the said John F. W. Miller, as such trustee, that said two deeds and said bond, so executed and delivered April 25, 1860, were all executed and delivered at the same time, and as parts of one and the same transaction, and that at the time of their execution and delivery the children of said Carland Elizabeth Mueller then living were named, as follows: August Mueller, John F. W. Meuller, Louise Hannig, Julius Mueller, Pauline Mueller, Robert Mueller, and Rudolph Mueller, also Charles G. Mueller; that all of said children were, at the time of the commencement of this action, deceased, except the said Louise Hannig, the plaintiff, and all died intestate; that the several defendants herein are descendants and heirs at law of the said children of the said Carl and Elizabeth Mueller, other than the said Charles G., or the widows of such children; that it was the intention of the parties to the transaction and instruments made April 25, 1860, that the said plaintiff Louise Hannig should be named in said bond as one of the children of the said Carl and Elizabeth Mueller, and the words “Eliza, (daughter,)” in said bond, were intended to name her, and were inserted in said bond by mistake, instead of the words “Louise Hannig,” her true and correct name, and that the plaintiff and the said Carl and Elizabeth Mueller supposed and believed, for many years after the execution of the said bond, that the plaintiff's name was therein as one of said children; that the tax deed was taken and recorded as mentioned; that at the date of said tax sale, and of the making and execution of said tax deed, the said Elizabeth Mueller was in possession of the premises by a tenant, and received the rents thereof; that she continued to hold such possession and to receive such rents without interruption from the date of said tax deed until her death in November, 1885; that said Carl Mueller, named in said bond, died November 12, 1863, and said Elizabeth Mueller, his wife, died November 5, 1885; that February 8, 1890, the plaintiff Louise Hannig executed and delivered to the plaintiff the Joseph Schlitz Brewing Company a deed of said premises, reciting a consideration of $4,400, and the same was recorded February 10, 1890; that the said company has paid the said Louise thereon only the sum of $1,000, reserving the balance until she should establish her title to the premises and her right to convey the same; and, as conclusions of law, the court found, in effect, that said bond or instrument in writing, dated April 25, 1860, was and is a good and valid declaration of trust by the said John F. W. Mueller in favor of the said Carl and Elizabeth Mueller for their lives, and then for their children and heirs at law after their death, except the said Charles G. Mueller; that said bond or declaration of trust with said two deeds, so executed April 25, 1860, are to be construed and interpreted together as one instrument, and their effect in law was to vest a life estate in said premises in the...