Marshall & Ilsley Bank v. Baker

• Decision Date: 07 January 1941
• Citation: 295 N.W. 725,236 Wis. 467
• Court: Wisconsin Supreme Court
• Parties: MARSHALL & ILSLEY BANK v. BAKER et al.

236 Wis. 467

295 N.W. 725

MARSHALL & ILSLEY BANK

v.BAKER et al.

Supreme Court of Wisconsin.

Jan. 7, 1941.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Affirmed.

Action quia timet brought by Marshall & Ilsley Bank against defendants Baker and Hill and others. From a judgment for plaintiff establishing title in plaintiff by adverse possession, the defendants Baker and Hill appeal.

The premises in suit Constitute a farm which with other land was owned by Edgar Keene, an insane person, whose wife predeceased him and who had no children. He was survived by two brothers and the appellants Baker and Hill, who were granddaughters and heirs of a deceased brother of Edgar. During Edgar's insanity, the taxes became delinquent and the north one-tenth of the land was sold therefor. The purchaser took a tax deed therefor in 1882. In 1886 he conveyed by quitclaim deed to David Keene, brother of Edgar, describing the premises as a whole. Francis B. Keene was a son of David. He was appointed guardian of the insane Edgar Keene in 1886, and in 1888 he filed an inventory of Edgar's estate, omitting therefrom the premises in suit. Edgar, the incompetent, died in 1891. Francis B. Keene was appointed administrator of his estate. He omitted the premises from his inventory. A guardian ad litem was appointed for the three granddaughters of the deceased brother of Edgar. Proof and designation of heirship was filed in the estate of Edgar, but the premises in suit were omitted from the description therein of the property owned by Edgar at his death. David Keene died in February, 1893, leaving a will devising and bequeathing all his property to his only child, Francis B. Keene, and in 1894 final decree was entered in the estate of David assigning all the real and personal estate of David, without description, to Francis B. Keene. No inventory was filed, none being required because bond was given to pay debts and Francis B. Keene was the only person interested in the estate under the will. David Keene in 1890 mortgaged the premises in suit to Hoyer, and in 1892 leased them to Drefahl for five years. In September, 1899, Francis B. Keene mortgaged the premises to plaintiff Marshall & Ilsley Bank. This mortgage was released in 1905 and in 1928 Francis B. Keene mortgaged the land again to the Marshall & Ilsley Bank. This mortgage was foreclosed and a lis pendens filed.

The appellants did not learn of Edgar's ownership of the land in suit until 1938 when the plaintiff bank requested a quit-claim deed thereof from them. They knew of the land of Edgar described in the heirship proceedings, and a division thereof was made between them and the two living brothers of Edgar.

In 1892 the living brother of Edgar Keene other than David executed to David a deed of the land described in the heirship proceedings, which did not describe the land in suit, but did contain a clause conveying “all other real estate and personal property in which I as one of the heirs at law of Edgar Keene, now deceased, may have or claim to have an interest.” At the same time a quitclaim deed to David from the second wife of Alfred Keene, brother of Edgar and deceased grandfather of defendants Baker and Hill, which contained the same description and clause as the deed from the living brother of Edgar above mentioned, was executed. These two deeds were executed in England, were witnessed by Francis B. Keene and were in his handwriting.

The First Wisconsin Trust Company has had the management of the farm for Francis B. Keene since 1915, and has collected the rents and accounted for them to him since that time. The taxes have been paid by Francis B. Keene since the acquisition of title by him. In 1903 Francis B. Keene went to France as a U. S. Consul and has since resided there. He then executed a power of attorney by which he appointed a local trust company to manage his Milwaukee county property, including the farm in suit. This agent collected and accounted for the rents of the premises in suit until the management of the property was taken over by the First Wisconsin Trust Company. The farm has been continuously occupied by tenants procured by the trust companies, agents of Francis B. Keene, since the latter went abroad. In the foreclosure suit first mentioned judgment of foreclosure was entered and the farm in suit was sold by the sheriff to the mortgagee, the Marshall & Ilsley Bank and the sale confirmed in 1936, since which time the bank has through its tenants been in possession of the property. On these facts the trial court found that David and Francis B. Keene during their successive periods of occupancy, dating back at least to the lease of the premises by David in 1892, have claimed absolute ownership of the farm under the deed to David executed by the tax deed grantee in 1886, and that neither claimed through descent from Edgar Keene; that they have continuously exercised acts of dominion over the premises and that their possession has been adverse to the defendants Baker and Hill and not by their permission or as tenants in common. The court concluded that the title of the bank to the premises had through the adverse possession of the bank and its predecessors in title and possession ripened into absolute and complete ownership. Judgment was entered accordingly.

A. W. Richter and Howard Haberla, both of Milwaukee, for appellant.

Shea & Hoyt, of Milwaukee (Ralph M. Hoyt, of Milwaukee, of counsel), for respondent.

FOWLER, Justice.

From the preceding statement of facts it appears that the suit was brought to quiet title to the premises described in the complaint in the plaintiff bank and exclude the appellants Baker and Hill from any and all claims therein, and that judgment was entered decreeing entire ownership to have accrued to the plaintiff by successive and uninterrupted adverse possession of the bank and its predecessors in title for over forty-five years at least.

The claim of the appellants derives from Edgar Keene who acquired title in 1856. He became insane about 1874. He died in 1891. The appellants claim a one-third interest in the premises as his grandnieces and heirs. The bank claims through a deed to David Keene, brother of Edgar, from the grantee in a tax deed executed in 1886 and based upon a tax sale of the land during the period of Edgar's insanity.

The appellants in effect urge in support of their claim of title that as matter of law the title through the tax deed grantee to David Keene inured to them as co-heirs of Edgar Keene and co-tenants of David Keene, and that adverse possession can not run by one co-tenant against another; and that the title of David Keene and his son Francis B. was procured by fraud practiced by them against the insane Edgar Keene and rendered the deed to David void.

[1][2] That one co-tenant can not acquire title by adverse possession against another is of course true, as a general proposition. Perkins v. Perkins, 173 Wis. 421, 180 N.W....