Perkins v. Burlington Land & Improvement Co.

• Citation: 88 N.W. 648,112 Wis. 509
• Parties: PERKINS ET AL. v. BURLINGTON LAND & IMPROVEMENT CO.
• Decision Date: 07 January 1902
• Court: Wisconsin Supreme Court

112 Wis. 509

88 N.W. 648

PERKINS ET AL.

v.BURLINGTON LAND & IMPROVEMENT CO.

Supreme Court of Wisconsin.

Jan. 7, 1902.

Appeal from circuit court, Racine county; Frank M. Fish, Judge.

Action by Frederick W. Perkins and others against the Burlington Land & Improvement Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

This is an action of ejectment commenced May 9, 1900. Both parties claim title from one Origen Perkins, deceased. Issue being joined, and a trial by jury being waived, the cause was tried by the court, and at the close of the trial the court made findings, which, with the undisputed facts, are to the effect: (1) That March 14, 1850, Origen Perkins was the owner in fee simple of the whole of the lands hereinafter mentioned, and being about to move to California, and for and in consideration of love and affection for his son, Frederick S. Perkins, made, executed, and delivered to one Dr. Edward G. Dyer, of Burlington, Wis., a trust deed, whereby he gave, granted, sold, and conveyed to him, his heirs and assigns, the undivided two-thirds of the lands therein described, including the lands in question, upon the trusts and to the uses, intents, and purposes therein expressed, limited, and declared, to have and to hold the same to himself, his heirs and assigns, to his and their use and confidence; nevertheless, to receive the rents and profits for a term not exceeding one year from that date, and with the same, and by the sale of so much land as he might find sufficient and necessary, to pay his just debts, and immediately after such payment to permit his wife, Julia A. Perkins, to receive the rents and profits of such lands to her use for her life; she to pay to Frederick S. Perkins such sum of money yearly as she might deem proper out of the rents and profits of the same. Then follows in the trust deed the following provisions: “And in case the said Julia shall die in the lifetime of the said Frederick S. Perkins, then the said Edward G. Dyer to pay to the said Frederick such sum or sums out of the rents and profits of the said lands as he may deem proper until the said Frederick shall arrive at the age of twenty-five years, and then, and as soon as the said Frederick shall arrive at said age of twenty-five, he shall receive the whole rents and profits of said lands to his use during his life. And in case the said Frederick shall survive the said Julia, and shall have issue, then the said lands, or the proceeds thereof, shall be conveyed by the said Edward G. Dyer to the said heirs of his body of the said Frederick S. Perkins, for their use and the use of their heirs, forever. And in case the said Frederick S. Perkins shall die, without issue, in the lifetime of the said Julia, wife of the said Origen Perkins, then immediately upon the death of the said Frederick the said Edward G. Dyer shall convey five-eighths (5/8) of the aforementioned two-thirds of said lands, tenements, hereditaments, and appurtenances of said Julia and her heirs, to her and their use forever, and three-eighths (3/8) of the aforementioned two-thirds of said lands, tenements, hereditaments, and appurtenances, to the heirs of Frederick S. Perkins, deceased, to their use forever. The said Edward G. Dyer shall have right, power, and authority to sell and convey any and every part of the before-granted premises and lots of lands in case of necessity arising out of the situation or wants of the said Julia in her lifetime, or after her death in case of necessity arising out of the situation or wants of Frederick S. Perkins, or upon the joint wish of the said Julia and Frederick S. at any time, with the consent of the trustee; the proceeds to be invested in such safe manner as the trustee deems proper for the use of the parties in interest. And if the said Origen Perkins shall survive his wife, the said Julia, or his son, the said Frederick S., then the said Edward G. Dyer, or his heirs, shall convey the premises to such person or persons and in such manner as the said Origen Perkins shall direct by his will or otherwise. And the said Edward G. Dyer, on his part, accepting the trust aforesaid, doth, for himself, his executors, administrators, and assigns, covenant, grant, and agree to and with the said Origen, Julia, and Frederick S. Perkins, and each of them, their, and each of their, representatives, faithfully to perform and fulfill the trusts aforesaid, and every part thereof, according to the true intent and meaning of these presents.” (4) At the time of the execution and delivery of such trust deed (March 14, 1850) the said Origen Perkins made and executed to said Edward G. Dyer another trust deed, for the benefit of his wife, Julia A. Perkins, in and by which he granted, sold, and conveyed to said Dyer, in trust, the other undivided one-third of the same property. That by virtue of the two trust deeds the trustee took possession and control of all the property described therein, and collected the rents and profits thereof, and fully managed and controlled the same. (2) That at the time of making such trust deeds the said Origen Perkins had but one child,--and he by a former marriage,--the said Frederick S., who was then about 17 years of age, and unmarried, and had no children; and the said Julia A. was his stepmother. (3) That in March, 1853, Origen Perkins died intestate in California, leaving his widow, Julia A., and his son, then a little over 20 years of age, and unmarried, as his only child and heir at law, him surviving. That August 19, 1858, the said Julia A. Perkins conveyed by deed to the said Frederick S. Perkins all her interest under said trust deed so made for her benefit. That May 1, 1859, the widow, Julia A., died. That April 1, 1861, the said Frederick S. Perkins (being then twenty-eight years of age, and living in Brooklyn, N. Y.) commenced an action in the circuit court for Racine county against the said trustee, Edward G. Dyer. That the complaint in that action mentioned some of the facts above stated, and that the rents and profits of said undivided two-thirds were only $175 per annum; that Frederick S. Perkins had had opportunities to sell a large portion of said lands at advantageous prices, but could not, by reason of such trust deed; that the trustee had refused to join in a conveyance by reason of an alleged erroneous construction he had placed upon such trust deed,--and prayed judgment that such trust deed be construed by the court, and the trustee be adjudged to convey the said undivided two-thirds of said lands, by quitclaim deed, to the plaintiff therein, Frederick S. Perkins, and that the title in fee simple be adjudged to be vested in the plaintiff. The trustee, Dr. Dyer, appeared therein by attorney, and answered such complaint, stating some of Origen Perkins' reasons for making the trust deed, and praying a construction thereof. The facts so stipulated in that case, and as found by the court therein, April 25, 1861, were, so far as applicable to that case, the same as stated above. And, as conclusions of law, the court found therein: That the trust deed was wholly void and of no effect. That Frederick S. Perkins was the owner in fee simple of the undivided two-thirds of said lands. That the plaintiff therein, Frederick S. Perkins, was entitled to the relief so demanded in his complaint; that the trustee be perpetually enjoined from exercising or executing any supposed trust created by such deed, and from exercising any control over such property, and was thereby ordered to convey the same by quitclaim deed to Frederick S. Perkins; and judgment was ordered accordingly, and such judgment was thereupon so entered April 25, 1861. That in obedience to such judgment the said trustee executed and delivered to said Frederick S. Perkins, by quitclaim deed, all of said lands immediately after the judgment was so entered. That May 1, 1865, Frederick S. Perkins married, and the four plaintiffs herein are the children of Frederick S. Perkins by the said marriage, and were born, respectively, as follows: Frederick W., in 1866; Robert S., in 1870; Henry E., in 1873; and Edward W., in 1875. That May 18, 1877, Frederick S. Perkins' first wife, and the mother of the plaintiffs' herein, died. That in 1888 or 1889 Frederick S. Perkins again married, and had four children born to him by such second marriage, and they were all still living and under-age. (5) That shortly after the making and entry of the judgment of April 25, 1861, Frederick S. Perkins took possession of the property mentioned in the trust deed, as the sole heir at law of the said Origen Perkins, deceased, and remained in the absolute, exclusive, and adverse possession thereof, managing and controlling the same as his own property, selling and otherwise disposing of the same down to the time of his death. (6) That the plaintiffs were reared and supported by said Frederick S. Perkins, up to the time they respectively reached their majority, upon and out of the rents, profits, and proceeds of said property. That March 12, 1887, Frederick S. Perkins delivered to the plaintiff, Frederick W. Perkins, a conveyance in fee simple of one of the lots described in said trust deeds. (8) And about the same time he conveyed another of said lots to the plaintiff Robert S. Perkins. (10) That March 17, 1892, Frederick W. Perkins and Robert S. conveyed said lots for a valuable consideration, and have ever since retained the consideration. (13) That April 15, 1893, “the said Frederick S. Perkins and wife made, executed, and delivered to the defendant herein a deed of conveyance of the property described in the complaint herein, with full covenants of seisin and warranty, for the consideration of $16,000, which was then and there paid by said defendant to the said Frederick S. Perkins; and the said defendant, pursuant to said conveyance, took possession of the premises described in the complaint, and improved the same, and has...