Marky Inv., Inc. v. Arnezeder

• Decision Date: 28 November 1961
• Citation: 112 N.W.2d 211,15 Wis.2d 74
• Parties: MARKY INVESTMENT, INC., a corporation, Plaintiff-Respondent, v. Katherine ARNEZEDER, etc., et al., Defendants-Respondents, Arthur Rauschenberger as Adm'r, etc., et al., Appellants.
• Court: Wisconsin Supreme Court

Page 211

112 N.W.2d 211

15 Wis.2d 74

MARKY INVESTMENT, INC., a corporation, Plaintiff-Respondent, v. Katherine ARNEZEDER, etc., et al., Defendants-Respondents Arthur Rauschenberger as Adm'r, etc., et al., Appellants.

Supreme Court of Wisconsin.

Nov. 28, 1961.

Action by plaintiff Marky Investment, Inc. against defendants Katherine Arnezeder, Arthur Schmidt, Arthur Rauschenberger, administrator, and Mildred Rauschenberger Gasse, administratrix, of the estates of Ferdinand and Irma Rauschenberger, respectively. The relief demanded is: (1) specific performance of a land contract entered into between plaintiff's assignor, as vendee, and Schmidt, as vendor, for the purchase and sale of a parcel of real estate located in the city of Milwaukee; (2) recovery of damages for certain title defects and breaches of contract by Schmidt; and (3) determination of possible dower rights of Irma Rauschenberger, deceased, in the subject real estate and the value thereof, and for allowance of a credit upon the purchase price of the amount thereof.

The action was commenced December 20, 1958. Among the allegations of the amended complaint are the following: That on May 1, 1953, Theodore A. Marks entered into a contract with one Arthur Schmidt for the purchase of the subject real estate; that Marks and his wife subsequently assigned the land contract to the plaintiff; that the public records show a warranty deed from Ferdinand Rauschenberger, dated December 28, 1928, conveying the subject real estate to Schmidt, which deed described Rauschenberger as a single person; that Rauschenberger was in fact then married to Irma Rauschenberger and continued in this status until his death in 1945; that there is no Arthur Schmidt in existence, and that respondent Arnezeder perpetrated various fraudulent acts upon plaintiff in representing herself as the authorized agent of Schmidt.

The specific allegations of the amended complaint bearing on the question of who has been in possession of the subject property are as follows:

'That said real property has not been the property of said Arthur Schmidt since December 18, 1928; ¹ that she [Katherine Arnezeder] has been in full control of said property since December 18, 1928,1 has collected all of the income from rentals of the rooming house located therein, has operated a tavern therein herself and has collected rents from said tavern when operated by a tenant and that she was in full possession thereof on May 1, 1953, the date the land contract hereinbefore referred was executed;

'That she knew that no such person as an Arthur Schmidt was the legal owner of the real property herein described and that she knew that said Herman Julius Ferdinand Rauschenberger had not conved [sic] said property to an existing Arthur Schmidt and that no such person being in existence she appropriated said real property and operated the same and retained for her own use and benefit all of the income therefrom including the payments made to her on account of the land contract hereinbefore referred to. * * *'

The amended answer of defendants administrator and administratrix admits:

'* * * that Katherine Arnezeder without power or authority has collected all of the income from rentals of the rooming house located at the aforedescribed real estate, has operated a tavern therein herself and has collected from said tavern when operated by a tenant, and that she has without power or authority remained in possession thereof.'

These defendants also cross complained against Arnezeder and Schmidt and counterclaimed against the plaintiff. Their answer, counterclaim and cross complaint are all contained in one document over one verification. The cross complaint alleges: that Schmidt is a non-existent and fictitious person invented by Arnezeder; that Ferdinand Rauschenberger, while married to Irma Rauschenberger, acquired title by warranty deed to the subject real estate on August 1, 1928, and conveyed the same to Schmidt by duly recorded warranty deed on December 28, 1928; and that Herman Julius Ferdinand Rauschenberger, also known as Ferdinand Rauschenberger, was still the lawful husband of Irma Rauschenberger at the time of his death on March 31, 1945. Then follow these allegations:

'11. That the defendant, Katherine Arnezeder, wilfully, deceitfully and with intent to defraud these cross-complaining defendants, their predecessors in interest and others, with respect to the right of ownership and rents, issues and profits of the above described real estate, did falsely, fraudulently and deceitfully impersonate or cause the impersonation of one Arthur Schmidt, who in fact was nonexistent and fictitious at all of the times herein mentioned.

'12. That as a result of the fraudulent acts of the said defendant, Katherine Arnezeder, no person or persons have been in legal possession of said real estate as against these cross-complaining defendants or their predecessors in interest.

'13. That these cross-complaining defendants herein did not have actual or constructive knowledge of the fraudulent acts of the said defendant Katherine Arnezeder, and such acts were not discovered although due diligent inquiry was made, until the commencement of this action by the plaintiff, Marky Investment, Inc., on or about December 20th, 1958.

'14. That the said Irma Rauschenberger died a resident of the County of Milwaukee, State of Wisconsin, on August 28th, 1957. That she never executed a deed of conveyance or in any other way released or relinquished her dower right in and to the above described real estate.'

The relief demanded by the cross complaint is:

'1. That the Court determine and adjudge title to the real estate described in the foregoing Cross Complaint to be in Herman Julius Ferdinand Rauschenberger, also known as Ferdinand Rauschenberger and Irma Rauschenberger, his wife, subject to the rights and interests or equities of the plaintiff.

'2. That in the alternative, the Court determine and adjudge the said dower right and the amount of same of Irma Rauschenberger, as a lien against the real estate described herein.

'3. For such other and further relief as may be just and equitable in the premises, including the cancellation of the deed from one Ferdinand Rauschenberger to one Arthur Schmidt.'

Respondents Arnezeder and Schmidt demurred to the cross complaint on the ground that the cause of action set forth therein was not commenced within the time limited by law, as set forth in certain enumerated statutes, including sec. 330.10. By order entered April 10, 1961, the circuit court sustained the demurrer. Defendants administrator and administratrix have appealed from this order.

Raskin, Zubrensky & Padden, Milwaukee, Herbert S. Bratt, Milwaukee, of counsel, for appellants.

Podell & Urgent, Milwaukee, Ward Dunphy, Milwaukee, of counsel, for respondents.

CURRIE, Justice.

Subd. (2) of sec. 263.15, Stats., expressly authorizes demurrers to cross complaints, and subd. (7) of sec. 263.06 states as one of the permissible grounds for demurrer 'that the action was not commenced within the time limited by law.' Furthermore, it is proper to demur on this ground when it appears from the face of the pleading attacked that the opposing party has been in adverse possession of the subject real property for the limitation period. Gurr v. Gurr (1944), 198 Ga. 493, 32 S.E.2d 507; Humbert v. Rector of Trinity Church (1838), 7 Paige (N.Y.) 195, affirmed (1840), 24 Wend. 587; 2 C.J.S. Adverse Possession § 212, p. 813.

The particular limitation statute relied upon in this demurrer is sec. 330.10, which provides: 'An adverse possession of 10 years under ss. 330.06 and 330.07 or of 20 years under ss. 330.08 and 330.09 shall constitute a bar to an action for the recovery of such real estate so held adversely or of the possession thereof.' Sec. 330.06, Stats., invokes the presumption of adverse possession when the possession is under a claim of title grounded on a conveyance or judgment while sec. 330.08, Stats., defines an adverse possession not grounded upon a conveyance or judgment.

As we construe the amended cross complaint, the cause of action is one for declaratory relief. Nevertheless, we deem the limitation periods imposed by sec. 330.10, Stats., are applicable even though the cause of action is not one strictly for the recovery of real estate. This is because adverse possession of the subject real estate for the limitation period extinguishes the title of the original owner and vests title in the adverse possessor. Hatch v. Lusingnan (1903), 117 Wis. 428, 94 N.W. 332; 1 Am.Jur., Adverse Possession, p. 796, sec. 11.

Appellants contend that under sec. 330.19(7), Stats., no statute of limitations ran against the Rauschenbergers because the fraud of Katherine Arnezeder was not discovered until plaintiff instituted its action in December, 1958. This statute provides a six year statute of limitations for actions for relief on the ground of fraud, and states that: 'The cause of action in such case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud.' However, this quoted statutory language has no application to sec. 330.10, Stats. This is because sec. 330.10, contains no exception to meet cases of fraud. This was so stated in Steinberg v. Salzman (1909), 139 Wis. 118, 123, 120 N.W. 1005.

A threshold question which confronts us, in determining whether the title asserted by the cross complainants has been barred by adverse possession, is whether we are confined to the allegations of the amended cross complaint, or whether it is also proper to consider the admission with respect to possession contained in appellants' answer, inasmuch as the cross complaint and answer are parts of the same document. It is true that a demurrer to a cross complaint or counterclaim embodied in an answer does not have the effect of searching the record to determine the sufficiency of the complaint. Wesolowski...