Hemmy v. Dunn

• Decision Date: 23 June 1905
• Citation: 103 N.W. 1095,125 Wis. 275
• Parties: HEMMY v. DUNN ET AL.
• Court: Wisconsin Supreme Court

125 Wis. 275

103 N.W. 1095

HEMMY

v.DUNN ET AL.

Supreme Court of Wisconsin.

June 23, 1905.

Appeal from Circuit Court, Dodge County; James J. Dick, Judge.

Action by Paul A. Hemmy, as administrator of the estate of Henry Dunn, deceased, against William Dunn and another, impleaded with others. From a judgment in favor of plaintiff, defendants William and John Dunn appeal. Reversed.

This action is brought by the administrator of the estate of Henry Dunn, who died intestate November 22, 1901, to quiet and establish title to the 40 acres of land described. It is conceded in the complaint that one Edward Murray obtained the title to said and by deed dated October 24, 1853, and that he died intestate August 27, 1856, leaving no issue nor wife, him surviving, but leaving, him surviving, his mother, Ann Murray, his brother, James Murray, and his three sisters, Mary Dunn, Julia Brady, and Margaret Miles. The defendants claim title as heirs at law through their mother, Mary Dunn, who was also the mother of Henry Dunn. The plaintiff claims title by virtue of Henry Dunn being in the exclusive possession of the premises for more than 20 years immediately prior to his death. Issue being joined and trial had, the court found as matters of fact, in effect: (1) That the allegations of the complaint were all true. (2) That November 22, 1901, Henry Dunn died intestate. (3) That the plaintiff was appointed his administrator. (4) That Henry Dunn left no personal estate whatever to pay debts or funeral or other expenses. (5) That the value of the other real estate left by Henry Dunn does not exceed $2,000, and the same is heavily incumbered by mortgage. (6) That Henry Dunn's interest in such other real estate, if sold alone, is not sufficient to pay his debts and funeral and other expenses. (7) That, to realize money sufficient to pay such debts and expenses, it is necessary that the title to the 40 acres of land in question be adjudged to have been absolutely in Henry Dunn at the time of his death. (8) That at the time of his death he was in sole and exclusive possession and occupancy of that 40 acres of land, and the whole thereof, and claimed the exclusive title to the same. (9) That, for a period of more than 20 years immediately preceding his death, Henry Dunn was in the continuous, actual, visible, open, notorious, and exclusive possession of the said 40 acres of land, and the whole thereof. (10) That October 1, 1881, one ______ Hemling was the tenant of the said Henry Dunn, and went into the occupancy of the premises described, and, from that date until the death of Henry Dunn, same was in the exclusive occupancy and possession of Henry Dunn, either personally or by his tenant. (11) That at the time of his death, November 22, 1901, Henry Dunn was the owner of the 40 acres of land described; the title having been conferred upon him by adverse and continuous possession for more than twenty years. (12) That the infant defendants, through their duly appointed guardian ad litem, disclaim any claim or right in the said premises.

And as conclusions of law, the court found, in effect, that November 22, 1901, Henry Dunn was the owner and in possession of the said 40 acres of land, and had been continuously in the actual, visible, open, notorious, and exclusive possession of the same for more than 20 years immediately preceding his death, and directed judgment that the title to the said real estate be declared in the said Henry Dunn at the time of his death, with provisions as to costs. Thereupon judgment was entered in accordance with such findings, barring the defendants, and each of them, from any right or title to the 40 acres of land described adverse to the said Henry Dunn, and of any claim or interest therein, except such as some of them may have as heirs at law of Henry Dunn, deceased, and for costs as therein stated. From that judgment, and the whole thereof, the defendants William and John Dunn bring this appeal.M. E. Burke, for appellants.

M. L. Lueck, for respondent.

CASSODAY, C. J. (after stating the facts).

There is no claim or pretense that the plaintiff's intestate ever acquired any right, title, or interest in the land in question by virtue of or “founded upon any written instrument or any judgment or decree” of any court. On the contrary, the claim is that he acquired such title by “an actual, continued occupation of” such “premises under a claim of title, exclusive of any other right,” and adversely to...