Roe v. Lincoln Cnty.
| Decision Date | 31 October 1882 |
| Citation | 56 Wis. 66,13 N.W. 887 |
| Parties | ROE AND OTHERS v. LINCOLN COUNTY AND OTHERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Lincoln county.Jackson & Thompson, for appellants, George W. Roe and W. H. Hay.
T. C. Ryan and W. H. Canon, for respondents, Lincoln county and others.
The defendants demurred to the complaint on the grounds--(1) For want of jurisdiction of the subject-matter; (2) that the plaintiffs are improperly joined; (3) that several causes of action are improperly joined; and (4) that the complaint does not state a cause of action; and the demurrer was sustained upon the third ground alone. The learned counsel of the respondents, in this court, relies upon all the four grounds of demurrer stated therein, as he has a right to do. The second and third grounds of demurrer rest upon the same general allegation of the ownership of the lands, a cloud upon the title of which is threatened by illegal and fraudulent tax proceedings, and the contention is that the complaint alleges the land to be owned by the plaintiffs in severalty. The allegation of ownership is that “the plaintiffs are, and for several years past have been, the owners,” etc. If there is a mere ambiguity or uncertainty in this allegation, and it may mean either that the lands are owned in common or in severalty, then the proper practice is to move to have the complaint made more definite and certain in this respect, and a demurrer will not lie. “When the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.” Section 2683, Rev. St.; Markwell v. Sup'rs, 10 Wis. 73;Clark v. Langworthy, 12 Wis. 441;Kuehn v. Wilson, 13 Wis. 104;Morse v. Gilman, 16 Wis. 504.
But however inartificially the facts may be presented by the complaint, or however defective, uncertain, or redundant may be the mode of their statement, if a good cause of action can be gathered from it by a liberal interpretation, a demurrer to it will not be sustained. Flanders v. McVickar, 7 Wis. 372;Morse v. Gilman, supra; Williams v. Sexton, 19 Wis. 42. We think the most that can be claimed, in respect to this allegation of the complaint, must be subject to these two principles, for most certainly it cannot be reasonably claimed that this averment means that the lands are owned in severalty, and in no other manner. But why is not this form of allegation by several plaintiffs to express an ownership of all the lands in common by them strictly correct, and how could it more clearly express such joint ownership? If the plaintiffs together own all of the lands, then they own together each tract or parcel thereof. If the plaintiffs own any tract or parcel of the lands in severalty--that is, if one of them own one tract or parcel, and the other another tract or parcel,--then certainly they do not own both tracts or parcels together, or the whole body of the lands together. So, if the plaintiffs--both of them--own all of the lands, as is alleged, they cannot own any tract or parcel thereof in severalty. But how otherwise could or should their joint ownership be expressed? Must it be by stating that they own as tenants in common, or as joint tenants in partnership or coparcenary. Such allegation would be a mere legal conclusion, and would not help out an imperfect averment of joint ownership in the first place. We cannot readily apprehend how this averment could have been made to more clearly express the joint ownership of all the lands. This objection to the pleadings is not even technical, much less substantial.
The general jurisdiction of a court of equity to prevent or remove a cloud upon the title of real estate, threatened or existing, by reason of void assessment or taxation, has been too long established by the numerous--far too numerous--decisions of this court, to be again raised in any case. If any question can ever be considered settled beyond dispute, this is one. After the following language of Mr. Justice Paine 20...
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