Harley v. Harley

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Harley v. Harley, 140 Wis. 282, 122 N.W. 761 (Wis. 1909)
• Decision Date: 05 October 1909
• Parties: HARLEY v. HARLEY.

140 Wis. 282

122 N.W. 761

HARLEY

v.HARLEY.

Supreme Court of Wisconsin.

Oct. 5, 1909.

Syllabus by the Judge.

One cannot recover in ejectment unless he is entitled to possession at the time he commences his action.

A legal defense in ejectment is not pleadable as a counterclaim since otherwise by the forms of pleadings a defense raising issues as matter of right commonly understood to be triable by a jury could be so interposed as to require trial by the court.

If a person on a sufficient consideration agrees to convey real estate to another as his property and puts such other into possession pursuant thereto, who subsequently, while in such possession dies intestate, leaving a widow and children, the circumstances being such that such other could have been judicially compelled to convey the land, pursuant to the agreement, to the executory vendee had he lived and such person nevertheless brings ejectment against the widow who is in possession with her children, such facts are a good legal defense, and are pleadable as an equitable defense as well to secure appropriate relief.

In the situation above stated the defendant may have the benefit of the equitable defense and obtain such affirmative relief as to fully protect her notwithstanding her children are not made defendants unless their presence in the litigation is necessary for their due protection or in order that a full determination of all the issues may be had.

In the contingency suggested the court should not dismiss the action nor render judgment in plaintiff's favor, but should, on his own motion, order the necessary parties brought in unless some one presently a party so moves.

In the situation stated in No. 4 the widow for her life or widowhood is the equitable owner of the homestead, if there be one, with the right to be clothed with the legal title to that extent, and the owner of a dower right in the other lands, if there be such, with the right to be clothed with such title as will fully protect such dower right.

If a widow with her children is left by the death of her husband in possession of land in which she has a dower right she may at law maintain that position without having her dower assigned.

A widow's dower in land will enable her not only to defend her possession if left therein with her children by her husband at his decease, without having such dower assigned, but whether she has issue by such husband or not she may maintain ejectment to obtain such dower.

The homestead right, which descends as such on the death of a husband leaving a widow and children, attaches to the home property even though the husband had only the full equitable title thereto.

A full equitable title to real estate and like beneficial interest therein, the holder of the legal title having no duty to perform in respect to the property except to convey the legal title to the owner of the equitable title, is an estate of inheritance within the meaning of the dower statute.

Appeal from Circuit Court, Dunn County; E. W. Helms, Judge.

Ejectment by Christ Harley against Freda Harley. Judgment for plaintiff, and defendant appeals. Reversed and judgment directed for defendant.

The matter litigated and basis for judgment as indicated in the findings may be concisely stated thus: Plaintiff holds the legal title to the premises in dispute consisting of eighty acres of land. He is the father of Charles Harley who died intestate August 12, 1903, leaving surviving the defendant, his widow, and three children. Prior to the marriage of defendant and Charles plaintiff gave the latter the real estate mentioned with the understanding that he and defendant should become man and wife and move upon, occupy and improve the premises as the property of Charles. The legal title was never parted with by plaintiff. The marriage contemplated took place and all conditions of the gift were satisfied by defendant and Charles taking possession of said premises as property of the latter and their occupying and using the same as such thereafter with plaintiff's approbation till Charles died, during which time he made valuable improvements upon the land supposing that he was the real owner thereof and that plaintiff would convey the same to him as he had promised to do. September 23, 1907, and long after the commencement of this action defendant became the wife of one Johnson. She was in possession of the premises in dispute with her children at the time this action was commenced and has been so circumstanced since the death of her husband. No assignment of dower has been made to her.

On such facts, notwithstanding defendant pleaded all the facts stated as aforesaid as a defense and also as a counterclaim and prayed for judgment requiring plaintiff to carry out his agreement with Charles by conveying the premises vesting in her and her children the title which would have come to them upon the death of Charles had he died seised of the legal title, the court decided that, since plaintiff held the legal title, defendant could not prevail in ejectment on her equitable defense, neither could she prevail on her counterclaim, without presence in the litigation of her children, and that though plaintiff had no right to possession of the premises as against the heirs of Charles, since she was not entitled to possession by virtue of any dower interest, plaintiff was entitled to recover.

Timlin, J., dissenting.

J. R. Mathews and R. E. Bundy, for appellant.

Arthur H. Shoemaker and J. W. Macauley, for respondent.

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

The learned trial court decided this case upon the theory that, because of plaintiff having the bare legal title to the property in question without any real right of possession--the whole equitable title and beneficial interest being, as was supposed, in the minor heirs of the deceased husband of appellant and, necessarily, also the right to be clothed with the legal title--he was entitled to recover since, as the court held, the facts could only prevail in equity as against him at the suit of the minors who were not parties to this action.

The grounds for the judgment are quite novel. They seem to fatally conflict with the elementary principle that in order to enable a person to recover in ejectment he must at least be entitled to possession of the property in dispute at the time of commencing the action. One may have the legal or equitable title without the right of possession, in which case, obviously, he cannot recover in ejectment, and the facts showing that he has no such right constitute a legal defense and so not only need not, but cannot properly, be interposed as an equitable defense in the form of a counterclaim. Page v. Kennan, 38 Wis. 320;Lawe v. Hyde, 39 Wis. 345-354;Pennoyer v. Allen, 51 Wis. 360, 8 N. W. 268;Brown v. Cohn, 88 Wis. 627, 60 N. W. 826;Appleton Mfg. Co. v. Fox River Paper Co., 111 Wis. 465, 87 N. W. 453. The reason thereof is that the statute (section 3078, St. 1898) as it has been construed provides that equitable defenses only must be pleaded in form as counterclaims and be tried by the court. Lombard v. Cowham, 34 Wis. 486;Du Pont v. Davis, 35 Wis. 631;Lawe v. Hyde, 39 Wis. 345;Stowell v. Eldred, 39 Wis. 614;Fuchs v. Treat, 41 Wis. 404;Dobbs v. Kellogg, 53 Wis. 448, 10 N. W. 623;Weld v. Johnson Mfg. Co., 86 Wis. 549, 57 N. W. 378. Therefore it is not permissible to change the character of the trial tribunal, as from one of law to one of equity, by the form of the...