Pricket v. Muck

• Decision Date: 25 April 1889
• Citation: 42 N.W. 256,74 Wis. 199
• Parties: PRICKET v. MUCK.
• Court: Wisconsin Supreme Court

74 Wis. 199

42 N.W. 256

PRICKET

v.MUCK.

Supreme Court of Wisconsin.

April 25, 1889.

Appeal from circuit court, Shawano county; GEORGE MYERS, Judge.

This action is brought for the purpose of having a patent from the state, and certain deeds of 40 acres of land, described, declared null and void, and to have the plaintiff adjudged to be the owner thereof in fee, with the right of possession, with a prayer for general relief. A demurrer to the complaint on the grounds of (1) a defect of parties defendant, in the omission of Mary Margaret Pricket, (2) of the improper union of several causes of action, and (3) the failure to state facts sufficient to constitute a cause of action, having been overruled, the defendant answered by a general denial, and thereafter by an amended answer, to the effect, in addition to such general denial, by way of counter-claim, that the defendant purchased the land of Forney January 6, 1882, in good faith, and paid $350, and received a deed from said Forney therefor; and that he had made valuable improvements thereon, and paid $31.02 taxes. The plaintiff replied to such counter-claim by general denial. Upon the trial the court found as matters of fact, in effect, that September 16, 1875, one Richard Pricket, was, and for a long time prior thereto had been, the owner in fee and in possession of the land by virtue of schoolland certificates theretofore issued to him by the commissioners of the public lands of this state; that during that time he was a married man, and one Mary Margaret Pricket was his wife; that on the day and year last named said Richard Pricket, in Maple Grove in Shawano county, Wis., made, executed, and published his last will and testament, set forth in the complaint, wherein he gave and bequeathed all his personal property to his said wife, Mary Margaret, (who was therein appointed executrix,) and also gave to the plaintiff, James Pricket, said 40 acres of land which he so held by said certificates, but that the said James was not to have the possession thereof so long as his said wife remained single and unmarried; that November 16, 1876, said Richard Pricket died at said Maple Grove; that February 19, 1887, said will was duly proved and admitted to probate in the county court of Shawano county, and said Mary Margaret appointed executrix thereof, and she thereupon qualified and entered upon her duties as such; that said order or judgment admitting said will to probate had never been appealed from; that said will was thereupon duly recorded in the office of the county judge of Shawano county, but was not recorded in the register's office of that county; that said Richard Pricket paid all interest and taxes which became due on said land up to the time of his death to the state treasurer, as required by said certificates, and never allowed the same to become forfeited, and he continued to own the certificates to the time of his death; that after the death of said Richard all the interest and taxes that became due on said lands were paid to said state treasurer, as required by law; that May 10, 1878, said Mary Margaret intermarried with one Toule; that after said marriage she neglected and refused to surrender to the plaintiff said certificates, or the possession of said land, or to carry out the trusts imposed on her by the will; that on or about May 20, 1881, said Mary Margaret and others made certain affidavits as set forth in the complaint, and therein and thereby falsely and fraudulently represented that said Richard died intestate and without issue, leaving her, the said Mary Margaret, his only heir at law, and that his estate had never been administered upon; and that she then and there paid the amount due to the estate upon said certificates, and asked that a patent for said land be issued to her as such legal heir, and in her name as such widow; that April 30, 1882, the said commissioners issued and delivered a patent of said land to her as such widow, and that the same was so procured through perjury and fraud; that June 6, 1882, said Mary Margaret made, executed, and delivered a warranty deed of said land to one Elizabeth Forney; that November 6, 1882, said Elizabeth Forney made, executed, and delivered to the defendant herein a warranty deed of said land, and the defendant has been in the actual possession of said land ever since, and that he has ever since received all the rents and profits therefrom, and made some improvements thereon; that at the time of the execution and delivery of said deed from said Forney to this defendant, and for a long time prior thereto, the defendant knew said land had been devised to the plaintiff by said will, and that said will had been duly proved and admitted to probate in said county court as aforesaid; that all the material allegations of the complaint were true. And as conclusions of law the court found, in effect, that all the title to said land so conveyed to the defendant was held by him in trust for the plaintiff; that the defendant was not entitled to any compensation whatever for the improvements made thereon by him; that the defendant should be ordered to convey all his right, title, and interest in said land to the plaintiff; that the defendant and all persons claiming by, through, or under him, should be perpetually enjoined and restrained from setting up any title to said land by virtue of said patent or title from said Mary Margaret under which he claims in hostility to the plaintiff's title; that the plaintiff should recover of and from the defendant the costs and disbursements of this action; and that judgment should be entered in favor of the plaintiff and against the defendant in accordance with such findings. From the judgment entered thereon accordingly July 2, 1887, the defendant brings this appeal.E. J. Goodrick, for appellant.

Charles W. Felker and K. M. Phillips, for respondent.

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

1. The testator died without issue him surviving. The plaintiff was his nephew. By the terms of the will the plaintiff was not entitled to the possession of the land while the widow remained unmarried. To entitle the plaintiff to the right of possession, it was necessary for him to prove that since the testator's death the widow had married. It is claimed that there is no sufficient proof of such marriage to support the finding to that effect. Such marriage was alleged in the complaint. In the body of her affidavit, made and sworn to May 20, 1881, and also in her signature to the same, she described herself, as “Mary M. Toule, nee Pricket.” This, as we understand it, was a declaration by her that before she married Toule her family name was Pricket. She made substantially the same declaration in her deed to Forney, under which the defendant claims title. Such proofs, together with her admissions of the fact in the house where she was boarding, in the absence of any evidence to the contrary, would seem to be sufficient to support such finding as against one claiming title under the papers in which such admissions were made. Besides, the plaintiff, as such reversioner of the...