Herndon v. Bock

• Decision Date: 16 November 1897
• Citation: 97 Wis. 548,73 N.W. 39
• Parties: HERNDON v. BOCK.
• Court: Wisconsin Supreme Court

97 Wis. 548

73 N.W. 39

HERNDON

v.BOCK.

Supreme Court of Wisconsin.

Nov. 16, 1897.

Appeal from circuit court, Grant county; George Clementson, Judge.

Action by John Herndon against Joseph Bock. Judgment for plaintiff, and defendant appeals. Appeal dismissed.

This is an action brought under subdivision 3, § 3097, Rev. St., by the defeated defendant in ejectment to establish a lien upon the lands recovered in the ejectment action for improvements placed thereon by him, and taxes paid thereon while he was in possession. The lands in question are 40 acres of land in Grant county, and they were recovered by Catherine McCormick in an action of ejectment brought by her against Herndon, and the judgment was affirmed on an appeal to this court. 86 Wis. 449, 56 N. W. 1097. In September, 1894, this action was commenced against Bock, as an assign of Catherine McCormick. The complaint states that the plaintiff held the lands in question adversely, under color of title, for a number of years prior to the judgment in ejectment, and, while so holding, made permanent improvements thereon, and paid taxes thereon amounting to $638; that Catherine McCormick brought an ejectment action for said lands, and recovered judgment October 16, 1891, upon which execution was issued July 16, 1894; that Catherine McCormick quitclaimed the land to the defendant, Bock, July 5, 1886; and that Bock is now the owner of the same; wherefore he prayed a lien for such improvements and taxes. Bock answered, denying that he was or ever had been the owner of the lands, but that he took title thereto in 1886 only to indemnify him upon signing the appeal bond in the ejectment action, and that upon being relieved of his liability upon the bond in May, 1891, he conveyed the same by direction of Catherine McCormick to Messrs. Bushnell & Watkins, her attorneys, as security to them for their fees and charges in the ejectment action. The action was tried by the court, but an advisory verdict was rendered by the jury, to the effect that (1) the plaintiff held the lands adversely by color of title, in good faith, from and after July 2, 1883; (2) while so holding, paid thereon $53.57, taxes; (3) and made permanent and valuable improvements thereon; (4) of the value of $500, on the 6th of October, 1891; (5) the owner should recover of Herndon, for rents and profits of the lands while occupied by him, $360. The court afterwards made findings in which he adopted the verdict of the jury, and further found as to the title of the defendant, Bock, that the facts were truly set forth...