Keilly v. Severson

• Decision Date: 23 April 1912
• Citation: 149 Wis. 251,135 N.W. 875
• Parties: KEILLY v. SEVERSON ET AL.
• Court: Wisconsin Supreme Court

149 Wis. 251

135 N.W. 875

KEILLY

v.SEVERSON ET AL.

Supreme Court of Wisconsin.

April 23, 1912.

Dissenting Opinion April 23, 1912.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Ejectment by William Keilly against Emma Severson and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Timlin, J., dissenting.

Action in ejectment. It was tried by the court. The issues and nature of the evidence are indicated by the following epitome of the findings:

In 1895, defendant Emma Severson, as administratrix of the estate of one Torhoug, sold and conveyed the real estate in question for $170 to one Erickson. He is a brother of Emma Severson who is the widow of said Torhoug. Prior to said sale she and said Erickson agreed that he should become purchaser at the sale, take the title in his own name and, later, convey the property to her. She paid the estate the $170. After the property was so conveyed to Erickson, he satisfied a mortgage upon some other property, which Torhoug gave in his life-time. The mortgage was given without consideration and the satisfaction was not in consideration of conveyance to Erickson of the particular property. Emma Severson, since the death of Torhoug, Aug. 6th, 1893, has been in the open notorious possession of the property. Plaintiff took his conveyance from Erickson with notice of Emma Severson's possession and of the then existing controversy between her and Erickson.

Upon such facts the court concluded, as matter of law, that Emma Severson was entitled to possession of the property as against plaintiff, and having pleaded the facts as an equitable counterclaim was entitled to judgment requiring plaintiff to convey to her the legal title thereto, or in default thereof that such title be vested in her by judgment of the court.

Judgment was accordingly rendered and plaintiff appealed.

Aylward, Davies, Olbrich & Hill, for appellant.

Charles N. Brown, for respondents.

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

[1] The findings of fact seem to have such basis in the evidence as to preclude disturbing them in any material particular. Counsel argue to the contrary at some length by a process of reasoning and method of analysis somewhat out of harmony with the rules governing the subject. The clear preponderance of evidence required to warrant condemning a trial court's findings, must appear so manifestly from the record,--after resolving all fair doubts in their favor and giving proper weight to those features in evidence below which could not be made to appear here,--as not to depend on any very careful weighing of probabilities. With this we pass the first complaint made without referring to the evidence except as to its general character.

The findings indicate this general situation: When the action was commenced appellant had the legal title to the property in question with the right of possession as claimed, unless respondent had a superior right, in that she was the equitable owner and was entitled to retain possession as against appellant and to be clothed with the legal ownership.

[2] Since appellant took title from Erickson with efficient notice on his part of the relations of respondent to the property, her rights therein were not affected by the change in legal ownership between the administrator's deed and the commencement of the suit. If one buys real estate of another while the subject of the transaction is in possession of a third person, he is presumed to act with notice of all facts which such situation would suggest, or which could be obtained by diligent inquiry. Martin v. Morris, 62 Wis. 418, 22 N. W. 525;Roberts v. Decker, 120 Wis. 102, 97 N. W. 519.

[3] There can be no question but that respondent violated the statute, section 3914, Stats. 1898, prohibiting an administrator from directly or indirectly purchasing or being interested in the purchase of any real estate sold by him. It is provided that all sales made contrary to such prohibition shall be void. So respondent committed a wrong in law without moral turpitude in the particular circumstances of the case. However, absence of any bad intent or actual injury to any one the statute was designed to protect, does not affect the nature of the title created by the improper transaction. By the policy of the statute, regardless of the real purpose of the parties, the sale was constructively fraudulent, and efficiently so, if appellant is entitled to the benefit of the statute under the circumstances. The law in respect to the conduct of administrators is very important, and the court in all situations to which it applies must hold to a high standard of accountability.

In further discussing the case it must be appreciated that the word “void,” as used in the statute, means voidable. Until a sale made in violation of it be set aside in a proper action, the purchaser is vested with the legal title to the land and he cannot be divested thereof except in such proper action brought within a proper time by a person entitled to challenge, efficiently, the validity of the sale. McCrubb v. Bray, 36 Wis. 333;Martin v. Morris, 62 Wis. 418, 22 N. W. 525;Gibson v. Gibson, 102 Wis. 501, 78 N. W. 917.

[4][5] The defect in the sale here, even as to a person the statute was designed to protect, was cured before commencement of this litigation by section 3918 of the statutes limiting the operation of section 3914, in the circumstances of this case, to five years next after the sale. Moreover, the sale being voidable only, by force of the policy, having for its object the protection of persons who might be injured because of being interested in an estate or claiming in some way under the devisee,--persons within the contemplation of section 3918, neither Erickson nor appellant are within the saving grace of the law. Furthermore, appellant does not base his claim of right upon the invalidity of the sale. He claims under it.

[6] So the character of the sale to Erickson does not cut any figure in this case, except as it has to do with the status of respondent in a court of equity. She, in effect, appealed to that jurisdiction in defense and for affirmative relief because of an alleged wrong, made possible by her own violation of law. In such circumstances, under the peculiar facts, did she come into such jurisdiction with clean hands, under the rule on that subject? If not, relief should have been denied to her in any event.

It is often, rather illogically, said that a person cannot successfully appeal to a court of equity unless he, himself, is without fault. If that were literally true, great wrongs, cognizable only in that jurisdiction, would go unredressed because of the victim being guilty of some fault of insignificant character as compared with that of his adversary, as in this case. Here there was reprehensible moral turpitude, as doubtless the trial court looked at the matter,--such that appellant, standing in the shoes of Erickson, should not reap the fruits thereof by shielding himself behind the really harmless fault, as to him; in plain violation of a quite dominating rule in equity, that no one can profit by his own wrong. Nemo ex suo delicto meliorem suam conditionem facere potest. All such rules are subsidiary to the all-pervading major principle, “Equity opens its doors whenever necessary to prevent fraud and injustice and where the relief asked conforms to the principles of rectitude and honesty.” Warden v. Board of Supervisors of Fond du Lac County, 14 Wis. 618, 620.

So, within a broad range, it rests in the conscience of the chancellor, whether, under the particular circumstances of the particular situation, equity ought to reach out its protecting arms in defense or redress. The seeker for such protection may not be wholly without fault and yet be entitled to some consideration. Do the principles of rectitude and honesty which should be the guide of human conduct, require or justify equitable interference? That is the test. There is no such stern rule as would close the eyes and ears, so to speak, of equity to the picture or cry of a distressed petitioner merely because of his hands not being entirely clean.

In the light of the foregoing, it is considered that the trial court did not go astray in deciding not to reject respondent's claim because of her violation of the statute. As said before, substantially, it was a wrong without injury to any one concerned in this litigation. The fault was participated in by both parties to the transaction. There was no real moral turpitude on her part,--no bad intent to injure. The sole purpose, as it seems, on her side was, without real prejudice to others, to acquire the home on which she and her husband had resided for a long time before he died, that she might continue to have a home there for herself and children. Erickson was her brother. He evidently co-operated to enable her, legally, as he probably thought, to avoid losing her home. The agreement to buy in the property, and convey it to her, he ratified after the sale by permitting her to pay the consideration into the estate out of her own money. He did not put a dollar into the property, even by payment of taxes, for many years after the transaction. For some five or more years the land was not assessed to him. It was then so assessed by his direction without consultation with her. It seems that at such time, or thereabouts, he conceived the idea of wronging his sister by refusing to convey the property to her, and later thought to put it beyond her reach by making the conveyance to appellant, his son-in-law. He, to all intents and purposes, after the sale, as before indicated, affirmed the arrangement with his sister, to the end that she might retain the home for herself and children, by not only requiring her, in legal effect, to make such payment, but by leaving her to pay the taxes and treat the property as her own for years. He did not assert title adversely to her by...