Hiles v. Atlee

• Decision Date: 03 April 1895
• Citation: 62 N.W. 940,90 Wis. 72
• Parties: HILES v. ATLEE ET AL.
• Court: Wisconsin Supreme Court

90 Wis. 72

62 N.W. 940

HILES

v.ATLEE ET AL.

Supreme Court of Wisconsin.

April 3, 1895.

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

Action by Samuel Hiles against Samuel Atlee and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

This is an action of ejectment commenced June 3, 1889, to recover the 80 acres of land described. The complaint is in the statutory form, and also claims $5,000 damages for the cutting and removing from the lands 1,000,000 feet of lumber, board measure, during the winter of 1886-87, by the defendants, and the conversion of the same to their own use. The answer admits the cutting and removal from the premises of 410,000 feet by the defendants, of the value of $1,000, but otherwise denies each and every allegation of the complaint. The defendants also alleged title in themselves by virtue of certain mesne conveyances under a tax deed based upon the assessment of 1871, and sale of September 3, 1872, from the state and Wood county to Hyde and Pitts, dated December 1, 1876, and recorded December 14, 1876. At the close of the trial the court found as matters of fact, in effect: (1) That November 10, 1869, the county board of Wood county duly passed and adopted a resolution authorizing the clerk of such board to sell and convey, to persons purchasing the same, any and all tracts of land which the county then had or might thereafter have a tax deed of, and upon such sale to issue and deliver to the purchaser a deed of release and quitclaim of such lands; (2) that October 5, 1870, the 80 acres of land described were conveyed by Wood county and the state to Wood county by tax deed issued on the sales of September 3, 1867, for the taxes of 1866, and said tax deed was recorded October 7, 1870; (3) that January 15, 1872, Wood county duly sold and conveyed said lands to Weston, Miner, and Kingston, and duly executed and delivered to them a deed of release and quitclaim thereof, which deed was dated January 15, 1872, and was upon that day duly recorded; (4) that January 7, 1874, said lands were conveyed by the state and Wood county to said Weston, Miner, and Kingston by tax deed issued on the sale of September 6, 1870, for the taxes of 1869, and said tax deed was duly recorded January 10, 1874; (5) that the plaintiff has acquired, by various mesne conveyances, all of the title so as aforesaid granted and conveyed to Weston, Miner, and Kingston, and was at the time of the commencement of this action, and now is, the owner in fee and entitled to the possession of said lands; (6) that November 1, 1859, said lands were conveyed and patented by the United States to one Joseph Turner, and that this plaintiff has acquired by various mesne conveyances and is now the owner of the title so conveyed to said Turner; (7) that December 1, 1876, the county clerk of Wood county executed a tax deed upon said lands in the name of the state and Wood county, based on the sale thereof of September 3, 1872, for the taxes of 1871, to Hyde and Pitts, but that said tax deed was not recorded in the office of the register of deeds of Wood county, and that November 20, 1888, the plaintiff redeemed said lands from said tax sale of September 3, 1872, paying the taxes of 1871, paying therefor to the county clerk of said county the sum of $67.96; (8) that the defendants, and those under whom they claim title, based upon said unrecorded tax deed, have paid the taxes levied and assessed against said lands, or redeemed the same from the sales thereof for the years 1877 to 1887, inclusive, and own and hold the tax certificates on the sales thereof in the years 1876 and 1877, for the taxes assessed thereon for the years 1875 and 1876, and that the amount so paid was $153.05, and that the same, with lawful interest thereon to March 29, 1894, makes the total amount of $621.04 as set-off which the defendants are entitled to pursuant to section 3087, Rev. St., and it is ordered accordingly; (9) that said tracts of land were and always have been wild and unoccupied, except by the defendants, and by them only during the time they were engaged in cutting and removing the timber therefrom, and that the defendants do and did, at the time of the commencement of this action, claim title to and unlawfully withhold the possession of said lands from the plaintiff, to his damage in the sum of six cents; (10) that during the winter of 1886-87 the defendants committed great waste and damage on said land by cutting and removing therefrom and converting to their own use 1,000,000 feet board measure of pine timber, which was at the time of said cutting and removal of the value of $3.50 per thousand feet board measure, amounting altogether to the sum of $3,500; (11) that all the material facts alleged in the complaint have been satisfactorily proven, and are substantially true. And, as conclusions of law, the court found, in effect, that the plaintiff is entitled to judgment for the possession of said lands, together with six cents damages, and also for the sum of $3,500 for waste and damage committed as so found, together with interest thereon at 7 per cent. since April 1, 1887, less the amount of offset allowed to the defendants for taxes and interest as so found; that the plaintiff is entitled to have and recover of the defendants his costs and disbursements herein to be taxed, and to have judgment entered in accordance with such findings. From the judgment so entered accordingly the defendants bring this appeal.

Gardner & Gaynor, Hooper & Hooper, and Losey & Woodward, for appellants.

C. O. Baker and Geo. L. Williams, for respondent.

CASSODAY, J. (after stating the facts).

The question on the former appeal was whether the nonsuit was properly granted, for want of proper evidence of title in the plaintiff. 80 Wis. 219, 49 N. W. 816. The objection now raised to the plaintiff's title is to the effect that the original title found to have been acquired by the plaintiff must be deemed to have been divested by the tax title acquired by Weston, Miner, and Kingston; that Weston died prior to the time when the plaintiff acquired that title; that Weston's will was admitted to probate, January 3, 1888; that, after providing for the payment of debts and specific legacies of personalty and money, the deceased, by his will, gave, granted, bequeathed, and devised to his wife, Elizabeth Weston, and to her heirs and assigns, forever, the remainder and residue of all his property, both real and personal, wherever situated, of which he died seised, and also therein appointed his said wife and his daughter, Emma, executrices of his said will, and thereby authorized and empowered them, among other things, to sell and convey real estate, and dispose of or exchange any property for the interest of the estate; that the deed from Miner and Kingston and their wives and the said Elizabeth Weston to the plaintiff, executed October 12, 1888, and recorded October 13, 1888, did not convey Weston's one-third interest in the lands. Our statute provides that “every devise of land in any will shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.” Rev. St. § 2278. Under this statute and the decisions of this court, it is very obvious that the widow, as such residuary devisee, took at once, on the death of the testator, all of his right, title, and interest in the land in question, subject, of...