Pinkerton v. Fenelon

• Citation: 131 Wis. 440,111 N.W. 220
• Parties: PINKERTON v. FENELON.
• Decision Date: 19 March 1907
• Court: United States State Supreme Court of Wisconsin

131 Wis. 440

111 N.W. 220

PINKERTON

v.FENELON.^a1

Supreme Court of Wisconsin.

March 19, 1907.

Appeal from Circuit Court, Price County; A. J. Vinje, Judge.

Action by L. J. Pinkerton against Elizabeth H. Fenelon. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action of ejectment to recover 160 acres of land in section 4, township 37, range 1 west, in Price county. The titles claimed by the respective parties were the same as those considered in Cole v. Van Ostrand (decided February 19th) 110 N. W. 884; the parties here being reversed, and the plaintiff claiming the same titles as did Van Ostrand, and the defendant the same titles as did Janet Macdonald Cole in that case. An additional issue, however, was presented by the pleadings in this case arising as follows: The defendant, by counterclaim, alleged that the transfer of tax certificates in 1895 from Price county to Winchester was void by reason of the failure to give notice of the intention to sell for less than the face, as required by section 664, St. 1898; that thereby plaintiff's grantor, in taking tax deeds, if he thus acquired legal title, became charged with a constructive trust to hold the same in favor of Price county; and that, by the quitclaim deed executed in 1899 from Price county to the J. L. Gates Land Company, defendant's grantor, the equitable title so arising in Price county was transferred to that company, and from it to the defendant. Upon those grounds she prayed judgment, among other things, establishing such trust and decreeing the title to be in her as against the plaintiff. The court refused to admit evidence in support of these allegations and held defendant's title under her later tax deeds void on the same grounds as was the plaintiff's in Cole v. Van Ostrand, 110 N. W. 884, and rendered judgment in the plaintiff's favor, after he had paid into court the amount of taxes, interest, and expenses incurred by defendant in connection with her tax titles. From such judgment the defendant appeals.Rublee A. Cole, for appellant.

Asa K. Owen, for respondent.

DODGE, J. (after stating the facts).

With one exception, all the claims of the respective parties in this case have been considered and decided in the two cases argued herewith, but decided February 19, 1907, of Cole v. Van Ostrand and Van Ostrand v. Cole. The distinguishing consideration in this case rests upon the claim made in the pleadings, and offered to be established by the proof, that the sale of the tax certificates by Price county to Winchester, upon which were taken the tax deeds under which plaintiff claims, was void in law because the act of the county officers was unlawful in the absence of published notice; that such illegality was participated in, and at least constructively known to Winchester; and that, as a result, when he or his assignee, Price County Land & Improvement Company, acquired a formal title by a tax deed, the law at once, by implication, imposed thereon a constructive trust in favor of the county which had remained the real owner of the certificates, whence arose at least an equitable, if not a complete legal, title to the land in the county. It is claimed further that the quitclaim deed from the county of all its right, title, and interest in the lands conveyed this title to defendant's grantor, and that she therefore is entitled to a decree of a court of equity declaring the title in her and removing the cloud thereon resulting from the recorded tax deeds to plaintiff's grantors. The argument is persuasive, but we shall not feel called upon to decide upon the soundness of its logic in any respect save one, namely, whether the quitclaim deed in the name of Price county to the J. L. Gates Land Company served to convey such equitable title arising under the tax deeds to the Price County Land & Improvement Company, if any such equitable title was held by the county. Very probably a general quitclaim deed from an individual sui juris would, presumptively, and in the absence of any legitimate evidence to qualify it, be deemed to convey every shred of interest in the described land which he had. But a very different rule applies to quitclaim deeds executed by one in an official or representative character, for such deeds are not the deeds of the ostensible grantor any further than the person signing them was authorized to act on behalf of his principal. The very fact that the signers are dealing, not with their own property, but with that of some one else, which is apparent upon the face of the instrument, carries with it the implication and...