Kimball v. Baker Land & Title Co.

• Decision Date: 18 February 1913
• Citation: 152 Wis. 441,140 N.W. 47
• Parties: KIMBALL v. BAKER LAND & TITLE CO.
• Court: Wisconsin Supreme Court

152 Wis. 441

140 N.W. 47

KIMBALL

v.BAKER LAND & TITLE CO.

Supreme Court of Wisconsin.

Feb. 18, 1913.

Appeal from Circuit Court, Polk County; Frank A. Ross, Judge.

Action by Leonard Kimball against the Baker Land & Title Company. Decree for plaintiff, and defendant appeals. Affirmed.

This action was brought to quiet title. The plaintiff alleged that he was the owner in fee of the lands in question, that the same were vacant and unoccupied, and that the defendant claims some right, title, or interest therein adverse to the plaintiff, but that such is subsequent to plaintiff's title, and prays that the plaintiff be declared the owner and the defendant barred from asserting any interest or claim therein adverse to plaintiff, and for general relief.

The defendant answered generally, and alleged by way of counterclaim that it was the owner in fee of the premises, and that the plaintiff claims some right, title, or interest therein adverse to defendant and caused certain deeds to be filed with the register of deeds, and that plaintiff has no estate or interest in the premises, and that plaintiff's deeds are a cloud on defendant's title, and demands judgment that defendant's claim and title be established and the plaintiff be barred, and for general relief.

By amended reply the plaintiff alleged as follows:

“(1) That on the 3d day of May, 1904, the Chicago, St. Paul, Minneapolis & Omaha Railway Company, then the owner of the premises, conveyed them, by warranty deed, to N. B. Bailey and C. N. Gorham, which deed was recorded May 24, 1904; that Gorham was then president and Bailey treasurer of the Wisconsin Blue Grass Land Company; that Gorham and Bailey acquired the lands for the benefit of the land company, and at or about the time of the deed made to Gorham and Bailey, or shortly thereafter, Gorham and Bailey deeded the lands to the company, the latter paying the entire consideration for the purchase; that on the 15th day of April the Wisconsin Blue Grass Land Company conveyed the premises, by warranty deed, to Thomas P. Hanna, which deed was recorded May 9, 1904; that at the same time Hanna and wife gave back a mortgage on the land to the land company to secure the unpaid balance of the purchase price; that thereafter this mortgage was foreclosed by advertisement under the Wisconsin statutes, and the land sold to Oscar Pfeiffer, and certificate of sale duly issued to him October 28, 1909, and on the same day this certificate of sale was recorded; that the lands were not redeemed, and Oscar Pfeiffer assigned the certificate to plaintiff, who afterwards received deeds therefor from the sheriff of Polk county.

(2) That at and prior to the execution of the deed from the land company to Hanna, Gorham and Bailey represented to Hanna that the land company owned the lands; that abstracts of title were not furnished at the time of the deed, and Hanna relied upon the representations as to the title and ownership so made by Gorham and Bailey, and by reason of such representations and the reliance thereon by Hanna, Gorham and Bailey, and all parties claiming under them, are estopped to assert any title to the premises adverse to Hanna and parties claiming under him; that some time during the year 1904 Gorham and Bailey with their wives, quitclaimed the premises to Hanna, or to the land company, but the deed has been mislaid or destroyed; that defendant purchased the premises with full knowledge of the condition of the title, and of the deeds and other instruments on file in the office of the register of deeds.”

The court found that on and prior to February 1, 1902, the Chicago, St. Paul, Minneapolis & Omaha Railway Company was the owner of the lands in question; that on said day said railway company executed and delivered a contract of sale, wherein the railway company agreed to sell to N. B. Bailey and C. N. Gorham the lands in question at a fixed price, and in said contract said Bailey and Gorham promised and agreed to purchase said lands; that thereafter, pursuant to the terms of said contract, the railway company executed and delivered to Bailey and Gorham a warranty deed conveying the lands, which deed was dated May 3, 1904, and was duly recorded on the 24th day of May, 1904; that on or about January 1, 1903, the Wisconsin Blue Grass Land Company began to do business in Wisconsin, and especially in Polk county, of dealing in lands; that Gorham and Bailey were, respectively, president and secretary of said corporation; that on or about April 15, 1904, one Thomas P. Hanna purchased from the Wisconsin Blue Grass Land Company the lands in question, together with other lands, and on May 9, 1904, a deed was executed and delivered to said Hanna by the Wisconsin Blue Grass Land Company, which deed was a warranty deed containing general covenants of warranty, and executed on behalf of said corporation by Gorham, as president, and Bailey, as secretary; that Gorham, in his capacity as president, conducted the negotiations leading up to and which finally resulted in the conveyance, and in conducting said negotiations stated to Hanna that said corporation owned said lands, and Hanna accepted the deed, relying upon the representations so made by Gorham, without receiving an abstract of title until after the consideration for said deed had been fully paid; that said deed was duly recorded May 9, 1904; that said Bailey and Gorham, between the 1st day of January, 1903, and the 15th day of April, 1904, sold to the Wisconsin Blue Grass Land Company a large amount of land and accepted in payment therefor stock of said company; that it does not conclusively appear whether or not the lands in question had been paid for by the issuance to said Gorham and Bailey of stock of the company; that Gorham and Bailey believed, when they closed the transaction with Hanna, that the corporation owned all of the lands conveyed to Hanna by the deed dated April 15, 1904; that at and prior to the time of the execution and delivery of said deed both Bailey and Gorham represented to Hanna that said corporation owned said lands and had good right to convey the same, and Hanna relied thereon and paid the consideration; that at the time of the execution and delivery of said deed Hanna executed and delivered purchase-money mortgages, conveying all of said lands to the Wisconsin Blue Grass Land Company, which mortgages were duly recorded and thereafter assigned by said company to Oscar Pfeiffer, which assignments were dated October 20, 1904, and executed on behalf of said company by Gorham, as president, and Bailey, as secretary, and thereafter said mortgages were duly foreclosed by advertisement, according to the laws of Wisconsin; that at the foreclosure sale said Pfeiffer appeared as purchaser, and thereafter duly assigned the certificate of sale to the plaintiff herein, and a sheriff's deed was duly executed to the plaintiff as assignee of said Pfeiffer, which deed conveyed the lands to plaintiff by virtue of said foreclosure proceedings; that the mortgages foreclosed contained covenants of warranty on the part of Hanna, by which Hanna covenanted and agreed to warrant and defend the title to said lands against all lawful claims; that on April 1, 1910, in the United States District Court for the Western District of Wisconsin, N. B. Bailey was duly adjudged a bankrupt, and on the 20th day of May, 1910, in the United States District Court for the Northern District of Illinois, C. N. Gorham was duly adjudged a bankrupt; that in February, 1910, in the United States Circuit Court for the Western District of Wisconsin, the Central Wisconsin Trust Company was duly appointed receiver of the Wisconsin Blue Grass Land Company; that on May 5, 1911, quitclaim deeds were executed by Bailey and wife and Gorham and wife to the Central Wisconsin Trust Company as receiver of the Wisconsin Blue Grass Land Company, and thereafter proceedings were had in the receivership of said company and in the bankruptcy proceedings for the administration of the estates of Gorham and Bailey, and conveyances made conveying to the Cushing Land Agency all the right, title, and interest owned by said Gorham and Bailey in the lands in question at the time of the commencement of the bankruptcy proceedings; that the deed of the Central Wisconsin Trust Company conveyed to the Cushing Land Agency all the title of the receiver acquired by the deed above mentioned, and all the interest belonging to the Wisconsin Blue Grass Land Company at the time the receivers took charge of the business of said company; that the name of the Cushing Land Agency has been changed to Baker Land & Title Company; that the price paid by the Cushing Land Agency for the deed acquired by it was not to exceed one-half of the fair market value of the lands described in the complaint; that the Baker Land & Title Company, formerly known as the Cushing Land Agency, purchased said premises with full knowledge and actual notice of the execution and delivery of the deed by the Wisconsin Blue Grass Land Company to Hanna, and of the fact that said Gorham and Bailey were, respectively, the president and secretary of said corporation, and of the execution and delivery of the purchase-money mortgages owned by Hanna to said corporation and the foreclosure thereof and assignment of the certificates of sale to plaintiff, and of all the rights of plaintiff by virtue of the various transactions heretofore mentioned; that a notice of lis pendens was duly filed on the 17th day of June, 1911; that the actions of Gorham and Bailey were of such a nature as to estop them, and all parties claiming under them with notice, from asserting any title to the premises in question as against the title conveyed by the deed executed by the Wisconsin Blue Grass Land Company, dated April 15, 1904, conveying said lands to Hanna.

The court concluded that the plaintiff is entitled to a decree adjudging and decreeing that he is the owner of the...