Perkins v. Perkins

• Citation: 173 Wis. 421,180 N.W. 334
• Parties: PERKINS ET AL. v. PERKINS.
• Decision Date: 14 December 1920
• Court: United States State Supreme Court of Wisconsin

173 Wis. 421

180 N.W. 334

PERKINS ET AL.

v.PERKINS.

Supreme Court of Wisconsin.

Dec. 14, 1920.

Appeal from Circuit Court, Eau Claire County; James Wickham, Judge.

Ejectment by Della Perkins and others against Morris Perkins. From a judgment in favor of only one plaintiff for a one-seventh interest in the land, subject to that plaintiff's paying a proportion of improvements made by defendant, the plaintiffs appeal. Reversed, with directions to enter judgment for the plaintiffs.

Ejectment. On January 7, 1891, John I. Brougham was the owner of the land described in the complaint and on that day died intestate, leaving the following heirs: Della Brougham, daughter, now Della Perkins, aged 28 years; Fred Brougham, son, aged 20 years; Kate Brougham, daughter, now Kate Perkins, aged 18 years; John Brougham, son, aged 15 years; Mary Brougham, now Mary Jones, aged 13 years; Clarence Brougham, son, aged 9 years, who died January 2, 1901, leaving no heirs; Clara Brougham, daughter, aged 5 years, who died intestate November 12, 1909, at the age of 24 years, leaving her surviving her husband, Eugene Rossman, and two sons, Forest Rossman, who died in 1910, and Howard Rossman, born March 4, 1909, and who is now living, and Nellie, a daughter, aged three years. John I. Brougham also left him surviving his widow, Lanis Brougham, who married the defendant, Morris Perkins, on January 1, 1893, and who died January 22, 1919. The plaintiffs are the sole surviving heirs at law and successors in interest of John I. Brougham, deceased.

After the marriage of the widow and the defendant, and in the month of November, 1894, the widow, her husband, and four minor children moved upon the premises. All of the minor children, except the plaintiff Nellie Brougham ceased to live upon the premises during or prior to the year 1899. Nellie Brougham continued to make her home on the premises with the defendant and her mother until the death of her mother January 2, 1919. The defendant purchased tax certificates upon the premises, sale of 1894 for tax of 1893, and on December 11, 1897, he caused a tax deed of the premises to be issued to himself. In the year 1894, and subsequently, the land was assessed to the defendant, and he paid the taxes thereon from that year to the time of trial. It appeared that the defendant and his wife had remained in possession of the premises from the time they occupied them in November, 1894, down to the time of the death of the wife, and that the defendant occupied the same at the time of the commencement of this action. During that time the defendant had cultivated and improved the premises. It further appears, without dispute, that the heirs of John I. Brougham, when not residing upon the premises, have resided in the vicinity and had full knowledge of the fact that the premises were in the possession of the parties as stated; that they never made any demand for an accounting for rents or profits. The reason they give for their failure to make such a demand is that they did not do so out of deference to their mother. None of the children knew that Perkins claimed to be the owner of the farm until at or about the time of the mother's death. The four children, Mary, Clarence, Clara, and Nellie, were members of the family at the time Mr. and Mrs. Perkins moved upon the premises. Clarence remained about 5 years and Clara about 8 years, and from the time of the marriage the defendant supported the children, sent them to school, clothed them and paid doctor's bills, and treated them as members of his family. At the time the defendant procured the tax deed, he made an affidavit of nonoccupancy in which he swore that the land had not been “occupied or possessed by any person for a period of thirty days within the last six months other than himself.” In his answer the defendant claimed to be the owner of the premises under and by virtue of the tax deed referred to. In support of his claims under the tax deed, he claimed the benefit of sections 1188, 1189a, 1189b, and 1190 of the Wisconsin Statutes, being statutes of limitation. He further claimed that he entered into possession of the premises on the 11th day of December, 1897, under claim of title, basing such claim upon a written instrument as being a conveyance of such premises; that he claimed under and by virtue of the tax deed; that he had been in possession of said premises for more than 10 years immediately preceding the commencement of this action; that, as purchaser and grantee of said premises under said deed, he had been in the actual and continued occupation of said premises adverse to and exclusive of every right under claim of title, founded upon the deed, claimed the benefit of sections 4211, 4212, and 4215, Wis. Stats., and pleaded said statutes in bar of the action, claimed title by reason of adverse possession for more than 20 years under sections 4213, 4214, 4215, and 4207, Wis. Stats.; claimed title by way of estoppel, and by way of counterclaim set up title under the tax deed, asked that his title be confirmed, and, in the event that the plaintiffs' title is held paramount to that of the defendant, then for the value of the improvements and taxes made and paid by him. The jury found a special verdict as follows:

“Question 1. What is the reasonable value of the rents and profits of the premises described in the complaint since February 26, 1913, exclusive of the value of the use of the improvements made thereon by the defendant? Answer. $456.00.

Question 2. What is the amount of money paid and the amount of interest thereon, computed at 15 per cent. per annum, for the purchase of the land at the tax sale, for executing and recording the tax deed, and for taxes subsequently paid thereon? Answer. $829.16.

Question 3. What is the present value of the improvements made by the defendant on said premises as they now exist, over and above the value of the rents and profits enjoyed by the defendant prior to February 26, 1913? Answer. $3,860.00.

Question 4. Did the defendant, while in possession of the premises, hold the premises adversely to all persons not in possession under color of title asserted in good faith? Answer. No.”

The court found, in addition to the facts already stated:

“That ever since the 11th day of December, 1897, the defendant has held said premises and been in the actual, continuous occupation and possession thereof, and of the whole thereof, exclusive of every other right, except as to the plaintiff Nellie Brougham, and for more than 20 years immediately preceding the commencement of this action, the said premises, and the whole thereof, have been cultivated and improved, and have been protected by substantial inclosure by the defendant, and that each of the plaintiffs, except the plaintiff Nellie Brougham, are barred from the right to recover possession thereof or any right or title therein.

That the tax deed under which defendant claims title is voidable as to the plaintiff Nellie Brougham, for the reason that she has been in possession of said premises in the manner stated in finding No. 3 at all times since the taking and recording thereof, until about January 22, 1919, and that the said Nellie Brougham is the owner in fee of an undivided one-seventh interest in and to the lands described in the complaint, and is entitled to the possession thereof upon compliance with the terms hereinafter ordered.

That the defendant is the owner in fee and entitled to the possession of an undivided six-sevenths of said premises.”

Judgment was entered accordingly, Nellie Brougham being required to pay $53.31 with interest as a condition of judgment in her favor being entered. From such judgment the plaintiffs appeal.

J. C. Gilbertson and A. J. Sutherland, both of Eau Claire, for appellants.

Sturdevant & Farr, of Eau Claire, for respondent.

ROSENBERRY, J. (after stating the facts as above).

The pivotal question in this case is whether or not the defendant was divested of his title under and by virtue of the tax deed by the possession of the plaintiff.

[1] All reasonable presumptions are to be made in favor of the true owners, including the presumption that actual possession is subordinate to the right of the true owner, subject, however, to the limitation that actual, continuous, exclusive possession for the statutory period, unexplained, displaces a presumption in favor of the true owner and creates a presumption of fact that such possession, and the commencement of it, were characterized by all the requisites to title by adverse possession. Meyer v. Hope, 101 Wis. 123, 77 N. W. 720;Illinois Steel Co. v. Budzisz, 106 Wis. 499, 514, 81 N. W. 1027, 82 N. W. 534, 48 L. R. A. 830, 80 Am. St. Rep. 54.

[2] The possession of the defendant in this case, however, is not unexplained. It is fully and completely explained. The acts of the defendant, as well as of his deceased wife, fully characterize his possession at the time of entry. The trial court found that they went upon the premises in November, 1894. At that time the defendant had no title to nor interest in the land. He was the owner of a tax certificate issued upon the sale of 1894 for taxes of 1893, but made no claim to title under such certificate at that time nor subsequently. His entry, therefore, was clearly permissive. His wife was the owner of a dower interest; the minor children who accompanied him were part owners of the premises. Under such circumstances, the entry of the defendant was permissive and not hostile or adverse. Ayers v. Reidel, 84 Wis. 276, 54 N. W. 588;Allen v. Allen, 58 Wis. 202, 16 N. W. 610;Bannon v. Brandon, 34 Pa. 263, 75 Am. Dec. 655;Johnson v. Oldham, 126 Ala. 309, 28 South. 487, 85 Am. St. Rep. 30;De Witt v. Shea, 203 Ill. 393, 67 N. E. 761, 96 Am. St. Rep. 311.

[3] The evidence is undisputed that the defendant never did anything to assert title under his tax deed, or made any claim adverse to plaintiffs, until at or about the time of his wife's...