Ill. Steel Co. v. Budzisz

• Decision Date: 23 February 1909
• Parties: ILLINOIS STEEL CO. v. BUDZISZ ET AL.
• Court: Wisconsin Supreme Court

139 Wis. 281

119 N.W. 935

ILLINOIS STEEL CO.

v.BUDZISZ ET AL.

Supreme Court of Wisconsin.

Feb. 16, 1909.

Dissenting Opinion Feb. 23, 1909.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Ejectment by the Illinois Steel Company against August Budzisz and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Barnes and Timlin, JJ., dissenting.

The issues litigated upon the trial concerned, in the main, whether defendant August Budzisz was, at the time of the commencement of the action, the owner of the premises in dispute by reason of having been for 10 years theretofore, uninterruptedly, in adverse possession thereof, under claim of title exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises, satisfying all the essentials of title by adverse possession under sections 4210, 4211, 4212, 4215, St. 1898. No other issue and no other question, except such as bear on that issue, need be considered on the appeal.

There was evidence on the following points: July 1, 1887, Frank Otto, being possessed of the disputed premises, then owner of the paper title duly leased in writing the same to him for a period of five years, at a yearly rental of $3, payable in advance, the lessee being privileged to remove all buildings, erected by him before or during the term, within six months from the date of service upon him of notice to vacate, as provided in the lease. The lease was signed by both parties thereto, and fully executed in every respect, and the relations of landlord and tenant between the parties were duly established. The same existed at the time of the conveyance to August Budzisz, hereafter stated, but not to his knowledge. Plaintiff succeeded to the paper title to the property before the commencement of this action and was the owner thereof, except as affected by defendants' rights, ever thereafter. August, 1887, by deed in form, as defendants claimed, Otto conveyed the premises to August Budzisz, he being ignorant of the relation of the grantor of the property, as before indicated. The only conveyance to said Budzisz, as plaintiff claimed, was of the building and removable improvements. The instrument of conveyance was not produced upon the trial. Such circumstances were established, in the judgment of the circuit court, as rendered parol proof of the contents of the instrument proper, and such proof, competent as the court ruled, was admitted.

The jury decided in defendants' favor, on all points essential to title in August Budzisz by adverse possession, unless the relations of landlord and tenant between Otto and the owner of the patent title, were impressed upon the rights obtained by Budzisz, perpetuating the same, as between him and such owner, and continuing into, if not through the claimed period of adverse possession.

Judgment was rendered in defendants' favor on the verdict, the question of law being decided in their favor. The plaintiff appealed.Van Dyke & Van Dyke, Theodore Kronshage, John H. Paul, and Kronshage, McGovern, Goff, Fritz & Hannan (Walter D. Corrigan, of counsel), for appellant.

Fiebing

& Kilillea (H. J. Kilillea and Moritz Wittig, of counsel), for respondents.

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

These are assigned as errors:

(1) The court refused to grant a non-suit, though it appeared that Budzisz was a mere successor to the title of appellant's tenant Otto;

(2) Parol testimony was allowed, and held sufficient, to prove the contents of the deed to Budzisz;

(3) Improper evidence was permitted which was prejudicial to appellant;

(4) Evidence offered by appellant was improperly excluded;

(5) Improper questions were included in the special verdict;

(6) Erroneous instructions were given to the jury. Some other errors were assigned but those stated, sufficiently show the claims of appellant as to all matters requiring attention in deciding the appeal.

The entire field covered by the specified claims of appellant has been examined in detail without discovering any but one question which will reasonably bear discussion to any great length.

There have been very many of these cases. In the whole, almost every conceivable question relating to adverse possession and title based thereon has been discussed, elucidated and decided. It is useless to go over any of them again, any more than incidentally, if at all. When the effect of statutes relating to the title to realty has been definitely judicially declared, the less said on the subject thereafter, by way of rediscussing the matter, the better. Frequent rediscussions of settled principles with new formulations of the legal rules involved, is liable to create confusion where none need to be, and it is of the utmost importance that none should, exist. From new discussions of principles, laid aside as settled, variations are liable to be discovered, leading to new, or promoting old litigation, when no variation was intended.

The foregoing preface, perhaps, will be taken as a sufficient excuse, if any were needed, for not treating the numerous detail errors grouped under the six heads in this opinion, or the groups in detail. Some of the matters discussed are of little moment and some are substantial. None have been overlooked, but none will be specially discussed except the one involved in the proposition hereafter stated. Such proposition is touched by several of the groups of assigned errors, but only so as to raise the single question.

Unless there is something fatal to the judgment involved in the proposition, the judgment must be affirmed. All questions otherwise, in the opinion of the court, are free from difficulty and must be resolved in respondents' favor.

This is the proposition which overshadows all others. The affirmative of it is strenuously contended for by the learned counsel for the appellant, while respondents' counsel just as strenuously contend for the negative. If the former is right the judgment must be reversed. If the latter is right it must be affirmed.

If A., having possession of real estate as tenant of B., the owner, conveys the same in writing to C., he having no notice of the relation of landlord and tenant as between A. and B., and C., under his conveyance, takes possession of the property, claiming title by no right except that purported to be conferred by his writing, and he remains in such possession as an exclusive owner might, continuously for the full period of 10 years--does he thereby acquire title in fact, good as against the former owner B., regardless of the relations existing between the latter and A., at the time he obtained his conveyance?

The learned counsel for appellant points to section 4216, St. 1898, providing that “whenever the relation of landlord and tenant shall have existed between any persons, the possession of the tenant shall be deemed the possession of the landlord until the expiration of ten years from the termination of the tenancy,” etc., as if the relation of landlord and tenant, having been created, it will continue as to the tenant and his successors in possession till possession shall have been delivered to the one from whom it was first obtained, actually or constructively. On that Pulford v. Whicher et al., 76 Wis. 555, 45 S. W. 418;Church v. Schoonmaker, 115 N. Y. 571-579, 22 N. E. 575;Whiting v. Edmunds, 94 N. Y. 309;Bedlow v. N. Y. Floating Dry Dock Co., 112 N. Y. 263-287, 19 N. E. 800, 2 L. R. A. 629 and similar cases.

The case cited from our own decisions does not seem to have the remotest bearing on the proposition to be decided. Possession was obtained of the lessee by fraud, for the very purpose of commencing adverse possession, not under conveyance by the tenant in writing, or really any conveyance by him at all but under a tax deed and through a fraudulent surrender of the landlord's possession, in which the one going out and the one going in participated. Under those circumstances the court, upon equitable considerations, decided that possession of the landlord did not change, but ran against the tax deed, instead of in favor thereof, under the statute of limitations respecting such deeds.

Whiting v. Edmunds, supra, is no more in point as we view it. The adverse claimant, as in Pulford v. Whicher et al., supra, did not enter, or claim possession, under a deed from the tenant. He obtained a spurious deed from a stranger, then obtained possession by obtaining an assignment of the leasehold interest and entered ostensibly by virtue of such assignment. That is, he took possession in fact, as successor of the tenant and then sought to raise the flag of an adverse possessor, under his spurious deed. How far that is from our proposition we need not delay to point out. It is too manifest. The learned court in the discussion, partly obiter, indulged in some remarks, particularly by reference to the ancient case of Jackson v. Scissam, 3 Johns. (N. Y.) 499, which if authority at all, would support the appellant's contention, but it is not. Statutes of limitation with the effect given thereto as in this state were not referred to or involved. The court formulated the extreme rule adverted to which, as seen, had nothing to do with the case, and referred to the ancient case of Jackson v. Scissam, supra, which merely declared and applied a common-law rule.

The other cases cited furnish no more satisfactory light. They are all based on the common-law principle that a tenant cannot impeach the title of his landlord, and that he who takes under a tenant merely succeeds to the tenancy relation. That is familiar as a general common-law principle and is applicable so far as not abrogated by statute. It was enforced, at common law, as regards title by adverse possession. It has been incorporated into the statutes at section 4216, but not so as to go beyond the letter of the written law and defeat other plain statutes. No one will claim that, in its letter the statute...