Jordan v. Warner's Estate

• Decision Date: 12 October 1900
• Citation: 107 Wis. 539,83 N.W. 946
• Parties: JORDAN ET UX. v. WARNER'S ESTATE.
• Court: Wisconsin Supreme Court

107 Wis. 539

83 N.W. 946

JORDAN ET UX.

v.WARNER'S ESTATE.

Supreme Court of Wisconsin.

Oct. 12, 1900.

Appeal from circuit court, Outagamie county; George W. Burnell, Judge.

Action by Woodford D. Jordan and wife against the estate of William S. Warner, deceased, to secure the allowance of a claim. From a judgment in favor of plaintiffs, defendant appeals. Modified.

Plaintiffs filed a claim against the estate of William S. Warner for $4,200, based on facts alleged substantially as follows: November 11, 1884, plaintiffs conveyed to Warner, by deed absolute in form, a large number of tracts of land, particularly describing them, to secure their indebtedness to him amounting to about $3,000. The conveyance was made in part execution of a verbal agreement, which, on the day of the execution and delivery of the deed aforesaid, was further executed by Warner giving to the Jordans a writing worded as follows:

“Whereas W. D. Jordan and Mary E. Jordan, his wife, have this day conveyed to me by warranty deed, certain lands and real estate in the towns of Bovina and Maine, in Outagamie county, Wisconsin, and certain village lots in the village of Schiocton in said county, more particularly described in said deed to which reference is here had, and whereas I hold claims against said lands and other lands of said Jordan's for taxes and tax deeds as charged in my book of account at this date, against W. D. Jordan's lands, of twenty-seven hundred and forty-six dollars and three cents, besides tax certificates thereon of sale of 1884, and of some other tax claims of said Jordan's lands not included in the deed aforesaid, and wishing an agent to sell and dispose of said lands and real estate conveyed to me as aforesaid, I have, this day, appointed and do hereby appoint said Jordan such agent, and for compensation, I hereby agree to allow and pay him for such agency for the sale of said lands or any part thereof, all the purchase money on such sales less the amount of tax claims thereon at the time of such sale, held by me, and twenty-five per cent. interest thereon, with costs of deeds, recording, etc., and should net proceeds of such sales at any time within five years so retained and paid to me amount to the said sum of twenty-seven hundred and forty-six dollars and three cents, with fifteen per cent. additional thereto annually, and all expenses incurred by me in reference thereto, and to cover all additional tax claims held by me on the lands of said Jordan not included in said amount, with lawful interest thereon at such time, then and in that case, I hereby agree to convey to said Jordans any of the lands so embraced in said deed to said Jordans and deliver to them all tax certificates and tax claims on all of the lands of said Jordans held by me at the time of such settlement.

Witness my hand this 11th day of November, 1884.

W. S. Warner.”

After the transaction stated Warner continued, till about February 6, 1896, to protect the lands mentioned in said instrument from tax liens by purchasing tax certificates from year to year or paying the taxes. No considerable amount of land was sold under the agency created by the paper, but Jordan took care of all of the property and collected damages from trespassers thereon, paying the money thus realized to Warner, who credited the same to plaintiffs in the land account mentioned in the writing. Warner, in addition to the lands sold with Jordan's approval, sold substantially all the rest of the lands without the knowledge of plaintiffs or their approval, and at a much less price than such lands were worth, the vendees being persons who were ignorant of plaintiffs' interest therein. No settlement of the account between the parties, in reference to the matters stated, occurred before Warner's death or has been made with his personal representative. The amount due the plaintiff is not less than $4,200, including damages caused by Warner's wrongfully disposing of the lands, as stated.

The administrator answered plaintiffs' claim by putting in issue the material allegations of fact upon which their claim was based, and by pleading the six-years statute of limitations (section 4222, Rev. St.), alleging that Warner rightfully acquired title to all of the lands by tax titles, which, prior to his death, ripened into indefeasible titles under the statute of limitations (section 1188, Id.).

The decision of the county court was in favor of the claimants. On appeal to the circuit court a compulsory reference, duly excepted to by defendant, was made, by which the cause was sent to Samuel Boyd to hear, try and determine. Before the referee, defendant objected to the jurisdiction of the court, also to the receipt of any evidence for want of facts stated in the plaintiffs' claim sufficient to support the same, also to their being allowed to proceed to trial without first electing upon what cause of action they would rely. All of such objections were overruled and due exceptions were taken to the rulings.

The following are in substance the facts found by the referee from the evidence, so far as such facts are necessary to the decision upon this appeal: May 10, 1881, by agreement between the parties, Warner purchased for W. D. Jordan a quantity of tax certificates on the land in question, at a cost to him of $1,010.70, for which sum Jordan gave his promissory note to Warner, payable three years after date thereof, with interest at the rate of 10 per cent. per annum. At the same time Warner gave to Jordan a paper, showing the relations between the parties in reference to the transaction, which is as follows:

“This is to certify that I have bought tax certificates upon the land of W. D. Jordan and Mary E. Jordan, for which I have paid the sum of one thousand and ten and 70/100 dollars ($1,01070/100), including the amount paid for redemption May 9, 1881, and that I hereby agree to sell to said W. D. Jordan the said tax certificates and certificate of redemption for the sum of one thousand and ten and 70/100 upon the following terms and conditions, to wit:

As collateral security upon the sale to said W. D. Jordan of the said tax certificates and certificate of redemption, the said W. D. Jordan gives to me his promissory note, bearing date herewith, for the said sum of one thousand and ten and 70/100 dollars, payable within three years from the date hereof, with interest at ten per cent. per annum until paid, interest payable annually; and the said W. D. Jordan or his lawful representatives shall have the privilege at any time of redeeming any of said certificates of the earliest dates, in order first, and of receiving the same, by paying to me the face amount of the same, with the lawful annual interest of twenty-five per cent. that may have accrued thereon; and when the certificates thus redeemed, with the twenty-five per cent. interest thereon, shall amount to the sum of one hundred dollars or more, such sum thus paid in redemption may be indorsed upon said promissory note, and the same process may at any time afterwards within the three years from the date hereof, or within such time as the said note may be extended, be repeated, until the said promissory note shall be paid, provided that none of said tax certificates shall be allowed to outlaw, but that all such certificates shall be redeemed by the said Jordan or his legal representatives in the manner above provided within five years from the date of such certificates; and provided further, that when the said promissory note shall be paid in full, with the ten per cent. interest thereon, as above, and all expenses incident to this transaction shall be paid by the said W. D. Jordan, or his representative, then such of the above-named certificates as shall remain in my hands and the certificate of redemption above referred to I will deliver to the said W. D. Jordan or his legal representative.

Dated May 10, A. D. 1881.

W. S. Warner.”

Warner kept a book account of his business thereafter transacted with Jordan in regard to said indebtedness and securities, which account was entitled “W. D. Jordan Land Account.” The account was active till November 11, 1884, charges being made from time to time for expenditures for the purchase of tax claims against the land covered by the certificates mentioned in the written agreement and against other lands owned by the Jordans, and credits being given for money received under such agreement, such credits aggregating $1,241.90, when an accounting took place by which the amount of the indebtedness of Jordan to Warner was adjusted at $2,746.07 exclusive of tax certificates on lands for 1884 and some other tax claims on Jordan lands not included in the conveyance hereafter mentioned. Upon the account being so adjusted a verbal agreement was made between the parties, pursuant to which plaintiffs made a conveyance to Warner and he gave them back a writing, which conveyance and writing are the ones mentioned in plaintiffs' claim.

For the purpose of convenience, the lands conveyed to Warner will be hereafter referred to as “conveyed lands,” and divided into two classes, “A lands” being those sold prior to Warner's death and “B lands” those not so sold. For the same purpose, the lands mentioned in the agreement which were not conveyed to Warner will be referred to as “other lands” and also divided into two classes, “C” standing for such as were sold during Warner's lifetime, and “D” for such as were not so sold.

After the transaction of November 11, aforesaid, Warner purchased a small book for the purpose of keeping a history of each tract of land covered by such transaction, in which book he entered all the lands by separate tracts, except in a few cases where collections of tracts were entered because they were located in the same block in platted lands. Under each such entry Warner noted all the tax claims he held against the tract, indicating that the amount thereof formed a part of the “Jordan...