Karr v. Washburn

• Decision Date: 12 December 1882
• Citation: 56 Wis. 303,14 N.W. 189
• Parties: KARR AND OTHERS v. WASHBURN AND OTHERS.
• Court: Wisconsin Supreme Court

56 Wis. 303

14 N.W. 189

KARR AND OTHERS

v.WASHBURN AND OTHERS.

Supreme Court of Wisconsin.

Filed December 12, 1882.

Appeal from circuit court, Door county.

Ejectment to recover certain lots in the village of Sturgeon Bay, in Door county. Omitting everything not material to the question considered by this court, the case is briefly as follows:

In 1863 one Bartlett, who held the legal title to the lots in controversy, conveyed the same by deed of quitclaim, absolute on its face, to one Harris. In 1873 the lots were sold for taxes to Door county, the certificates of sale were afterwards duly assigned to one of the defendants, and in 1876 a valid tax deed was executed to such assignee by the proper officer, which deed was duly recorded. May 9, 1879, Harris conveyed the lots to plaintiffs by quitclaim deed. On the trial the plaintiffs offered testimony to prove that Bartlett recognized the plaintiffs' equitable ownership of the lots, and for convenience conveyed the same to Harris without consideration, with the understanding between them that Harris should convey the same to the plaintiffs, and that the deed of May 9, 1879, was executed by him pursuant to such understanding. The plaintiffs also offered to prove that on December 31, 1878, they redeemed the lots from the tax sale on which defendants' tax deed issued. At this time two of the three plaintiffs were minors and the other became 21 years of age less than one month before such redemption. All the testimony thus offered was excluded by the court. The findings are that at the time of the taxsale Harris owned the lots in fee, and that the defendant, the grantee in the tax deed, is now the owner thereof.

Judgment for defendants, dismissing the complaint, and for costs, was thereupon entered. The plaintiffs appeal therefrom.D. E. Drentzer and Tracy & Bailey, for appellants, Ida M. Karr and others.

C. W. Allen and Hastings & Green, for respondents, Leroy M. Washburn and others.

LYON, J.

The alleged redemption, which the plaintiffs offered to prove, was attempted to be made under chapter 89, Gen. Laws 1868, which is incorporated in Rev. St. p. 317, § 1166. The statute is as follows: “The lands of minors or any interest they may have in lands sold for taxes, may be redeemed at any time before such minors come of age, and during one year thereafter.” The question to be determined is, did the plaintiffs have any interest in the lots in controversy when they redeemed the same? Their interest (if they had any) results from the facts which they proposed to prove, that Bartlett, the former owner, recognized their equitable right to the lots, and that he conveyed them to Harris upon the parol trust that he would convey the same to the plaintiffs, who were thus recognized by Bartlett as the equitable owners. The eldest plaintiff became of age December 9, 1878. Hence, at the time Harris conveyed to the plaintiffs, May 9, 1879, the time of redemption limited by the above statute had not expired.

Harris was under the stringent moral obligation to convey the lots to the plaintiffs, although he could not have been compelled to do so by judicial process. To the extent of that moral obligation plaintiffs had an interest in the lots. By Harris' conveyance to them, that interest became fully vested, and from thenceforth they became, but for the tax deed, the absolute owners of the fee. Before conveyance, their interest in the lots was their moral right to become the absolute owners of the fee. Hence, the conveyance only gave them that to which they were honestly entitled, long before the tax was levied which is the basis of the tax deed under which defendants claim.

The statute provides (Rev. St. p. 654, § 2302) that no trust concerning lands shall be created, assigned, granted, surrendered, or declared unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, assigning, granting, surrendering, or declaring the same. But this does not prevent the execution by a trustee of a parol trust. Indeed, in Rasdall's Adm'rs v. Rasdall, 9 Wis. 380, this court, after holding a...