McCann v. Welch

• Decision Date: 27 February 1900
• Citation: 106 Wis. 142,81 N.W. 996
• Parties: MCCANN ET AL. v. WELCH ET AL.
• Court: Wisconsin Supreme Court

106 Wis. 142

81 N.W. 996

MCCANN ET AL.

v.WELCH ET AL.

Supreme Court of Wisconsin.

Feb. 27, 1900.

Appeal from circuit court, Grant county.

Action by Maggie McCann and others against Patrick Welch and another. Judgment for plaintiffs. Defendants appeal. Reversed.

On January 15, 1885, Mary Welch, wife of the defendant Patrick Welch, being in extremis, and holding the title to the home farm of 120 acres, a justice of the peace was called, who, in the same room with the defendant Patrick Welch and all of the children of the parties, prepared a deed of conveyance from the wife to her husband, Patrick Welch, for the expressed consideration of $500. The deed was then taken to the bed, and the wife's mark placed thereon, the pen being in her fingers, and they held by her brother-in-law, who had no interest in the matter. The deed was then witnessed by the brother-in-law and the justice, a certificate of acknowledgment subjoined, and was handed to the defendant Patrick. There was some evidence as to the defendant's paying the whole or a part of the consideration for the farm originally, and of the wife's desire, previously expressed, to make some such conveyance. The court found complete incompetency on the part of the wife,--indeed, substantial unconsciousness of what was being done,--and held that the deed was never executed by her. She died the same night. The defendant Patrick Welch, both for many years before and many years afterwards, resided upon the farm, and five days afterwards, to wit, January 20, 1885, recorded the deed, and ever since his wife's death, either by personal occupancy or by leasing, has exercised complete possession, claiming title under the deed. On November 6, 1886, he mortgaged the property, and one of the plaintiffs (Henry) received a part of the whole of the proceeds of such mortgage. Again, in September, 1895, he made a further mortgage. Both mortgages were promptly recorded in the register's office. On October 12th the defendant Patrick conveyed said premises to his daughter, Bridget Halstead, who was present at the time of the attempted execution of the deed from her mother, and who, in common with her brothers and sisters, had known all about that and subsequent transactions. The consideration of the deed to her was her agreement to pay certain sums of money to others, to support her father, in a manner specified, as long as he should live, to pay him annually certain sums of money, and to provide for his funeral and a monument. The wife, Mary Welch, left, surviving her, six children, the plaintiffs Maggie McCann and Mary Harris being children by a former husband, and the other plaintiffs, together with Bridget Halstead, being children by the defendant Patrick. The plaintiffs McCann and Harris were not present at the time of the execution of the deed, nor are they shown to have had any actual knowledge with reference thereto, or with reference to their father's control over the premises since then, having resided, both before and after their mother's death, at a distance. The present action was for cancellation of the deed, and was commenced August 24, 1898. The judgment wholly canceled and set aside the deed from Mary Welch to Patrick, and canceled and set aside the deed from Patrick Welch to Bridget Halstead in so far as the latter purports to convey any greater estate than the life estate of the defendant Patrick in four-sixths thereof, but made no modificationof her contract for his support, etc. From that judgment both defendants appeal.

Bushnell, Watkins & Moses, for appellants.

Lowry & Clementson, for respondents.

DODGE, J. (after stating the facts).

The finding of the court that Mary Welch was incapable of executing a deed, and that she neither knew nor understood what was being done, and had no knowledge and gave no consent to the delivery of the deed to her husband, are not antagonized by a clear preponderance of the evidence, and must stand, so far as material, as verities in the case. Such finding would support the judgment, unless plaintiffs are precluded from maintaining the action by their conduct, or by lapse of time. The answer attempts to raise statutes of limitation, but wholly omits the only statute directly applicable to this action, namely, section 4221, Rev. St., which imposes a limitation of 10 years upon certain equitable actions. It, however, pleads sections 4211, 4212, and 4215, Id., barring actions for the recovery of real estate after 10 years of adverse occupancy under a written instrument. This is not an action for the recovery of real estate, and those sections have no direct application thereto as limitations upon the right to bring it. Adverse possession has, however, an effect other than and additional to mere bar of a possessory action, namely, to transfer at least the practical title and ownership from the former owner to the adverse possessor; and if it appear that this result has been accomplished, and that the plaintiffs, or any of them, no longer have any practical ownership of or title to the property, they cannot maintain the action, for they have no interest to protect thereby. Dumont v. Dufore, 27 Ind. 263, 268;Nelson v. Jacobs, 99 Wis. 547, 75 N. W. 406.

This brings us to consideration of the question whether there has been adverse possession under a claim of title, exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises in question, in compliance with section 4211, Rev. St. In considering the rights of the parties under this section there must be a severance of the plaintiffs, of whom McCann and Harris, being children of a prior marriage, were entitled to immediate possession as tenants in common with their father upon the death of their mother, January 15, 1885, while the others, being children of the defendant Patrick as well, have never yet had any right of possession or of action to recover the same, he being entitled, independently of the deed, to hold the premises by right of curtesy. We shall first examine whether there has been adverse possession under written claim of title as against McCann and Harris. The actual and exclusive possession by Patrick Welch for more than 10 years is not disputed. That such possession commenced upon the death of Mary under the deed ostensibly executed by her, and recorded five days later, and has been held under the same ever since, is established by his own undisputed testimony. The character of possession which will exclude the true title must be such that the owner of that title if in charge of the property, and in the exercise of due diligence, might be apprised thereof. Kurz v. Miller, 89 Wis. 426, 433, 62 N. W. 182. It cannot be doubted that the possession in this case has been of that character. If McCann and Harris had been in charge of this property,--a cultivated farm, --and had exercised due diligence, they could not but have known that Patrick Welch's possession was antagonistic to their right, although he was a co-tenant. They were entitled annually to a share of the rents or rental value of the premises, and never received it. The public records, wherein all ordinarily careful people look to ascertain real-estate rights, have disclosed a deed purporting to give him full title since 1885, and a mortgage executed by him, which was itself an assertion of ownership. These things could not have taken place without coming to the notice of an owner in charge of his interests and exercising ordinary diligence even as against a co-tenant. We conclude, therefore, that all the elements of adverse possession under section 4211, Id., exist as against these two plaintiffs, unless, as strenuously insisted by the respondents, the defendant Patrick Welch cannot predicate his possession upon the deed from his wife, for the reason that it is not a valid one, and that he had knowledge of its imperfections. This is no more than a contention that one may not acquire title by 10 years' adverse possession unless his claim of title under a written instrument is made in good faith, --a proposition which is maintained by some courts, and is supported by some remarks in some of our own cases, but which is no longer open to debate in Wisconsin since the very full and conclusive discussion and decision of it negatively in Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171. Wherever the Wisconsin doctrine is maintained, no paper writing, purporting upon its face to be...