Kruezinski v. Neuendorf

• Decision Date: 12 April 1898
• Citation: 74 N.W. 974,99 Wis. 264
• Parties: KRUEZINSKI ET AL. v. NEUENDORF ET AL.
• Court: Wisconsin Supreme Court

99 Wis. 264

74 N.W. 974

KRUEZINSKI ET AL.

v.NEUENDORF ET AL.

Supreme Court of Wisconsin.

April 12, 1898.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Joseph Kruezinski and others against John F. Neuendorf and wife, impleaded with John and Sophie Kulka and others. From an order overruling a demurrer, the defendants appeal. Affirmed.

This is an appeal from an order overruling the demurrer interposed by the appellants to the complaint, which alleges, in effect, that Simon Kruezinski died intestate December 25, 1882; that at the time of his death he resided in Milwaukee, and was the owner in fee and possessed of the real estate therein described; that said intestate left, him surviving, his widow, Katharine, and eight children, as his only heirs at law; that four of them, who are not parties to this action, were more than 21 years of age, and the other four, who are plaintiffs in this action, were then less than 21 years of age, and two of them are still infants and appear by their guardian herein; that said estate has never been administered; that no proceedings have ever been had for the appointment of an administrator of said estate, and none has ever been appointed, and no settlement thereof has ever been made; that January 1, 1888, the widow, Katharine, was married to one Joseph Weisbrod; that June 17, 1893, she died at her home in Milwaukee; that, during the time she and Joseph lived together as wife and husband, they conspired together to cheat, wrong, and defraud the plaintiffs in this action, who were then infants, out of the lands described, and to that end said Katharine falsely and knowingly petitioned and represented to the county court for Milwaukee county that the four adult children of said intestate who are not parties to this action were the only heirs at law of said Simon, deceased; that she intentionally and wrongfully suppressed the existence of the plaintiffs herein, and concealed their relationship to the deceased, and their interest in the real estate described, from the knowledge and consideration of the county court; that the plaintiffs had no legal guardian and no guardian ad litem, and were entirely ignorant of the proceedings and the nature thereof; that no personal notice of the proceedings was ever given to or served upon the plaintiffs, or any of them, and that they were not in any manner represented in the proceedings; that March 13, 1889, such proceedings were had in the matter of the estate of Simon that, by means of the false and fraudulent representations so made to the county court, said Katharine obtained from that court, and caused to be recorded in the register's office, a judgment and final decree of the county court, wherein it was ordered, adjudged, and decreed that the four children not parties to this action were the sole heirs at law of the said Simon, and were the owners in fee simple of the real estate described, subject to the dower of the said Katharine, when she well knew, as the facts were, that the plaintiffs were also the children of the said Simon by her, the said Katharine, and his heirs at law, and that they had been fraudulently and wrongfully omitted from the statement of the heirs of said Simon in the said judgment and decree; that January 22, 1889, said Katharine and Joseph Weisbrod obtained from the adult heirs of said Simon, not parties to this action, a quitclaim deed of the land described, running to themselves, and recorded February 8, 1889, reciting a consideration of $160; that the plaintiffs were entirely ignorant of the execution and delivery of that deed, and did not consent thereto nor join therein; that August 17, 1889, the said Katharine and Joseph conveyed the premises described to the defendant John F. Neuendorf, subject to a mortgage for $900, by warranty deed recorded August 19, 1889, when they all well knew, as the facts were, that the plaintiffs in this action owned the undivided one-half interest in the lands described, which could not be so conveyed; that John F. Neuendorf had for several years resided a near neighbor to the said Simon, and was well acquainted with all his children, and that such fraudulent and false judgment and decree were so obtained with the knowledge, consent, and procurement of the said John F. Neuendorf, and under his special advice and direction; that John F. Neuendorf and wife remained in possession of said premises under said deed until January 16, 1890, when they conveyed by warranty deed, to the defendants John and Sophie Kulka, the east half of the land described, and recorded the same, which deed recited a consideration of $1,000, and since that time John and Sophie Kulka have been in possession thereof; that the plaintiffs are the owners in fee, by inheritance from their father, of an undivided one-half interest in and to the lands described, and entitled to the possession of the same, together with the rents and profits thereof, which were of the value of $200 per year for each and every year during the time; that February 11, 1892, the defendants John and Sophie Kulka made, executed, and delivered to the defendant the Skarb Poliski Mutual Loan & Building Society a certain mortgage upon said land to secure the payment of $500, six years after date, with interest at 7 per cent. per annum, which mortgage was recorded February 12, 1892; that May 10, 1894, John and Sophie Kulka made, executed, and delivered to the defendant loan and building society a certain other mortgage upon said land to secure the payment of $100 one year after date, with interest, payable quarterly at 7 per cent. per annum, which mortgage was recorded May 11, 1894; and prays judgment that so much of the judgment and final decree of the county court as ordered, adjudged, and decreed, in effect, that the four children not parties to this action were the sole heirs at law of said Simon and the owners in fee simple of the real estate described, subject only to the dower of Katharine, be set aside as false, fraudulent, and void; that the plaintiffs herein be adjudged to be the children and heirs at law of the said Simon, and entitled to the possession of an undivided one-half interest in the land described from and after August 17, 1889; that both of the mortgages described be declared null and void, so...