Rountree v. Davidson

• Decision Date: 19 February 1884
• Citation: 59 Wis. 522,18 N.W. 518
• Parties: ROUNTREE v. DAVIDSON AND OTHERS.
• Court: Wisconsin Supreme Court

59 Wis. 522

18 N.W. 518

ROUNTREE

v.DAVIDSON AND OTHERS.

Supreme Court of Wisconsin.

Filed February 19, 1884.

Appeal from circuit court, Grant county.

This is an action of ejectment to recover 20 acres of land, to-wit, the W. 1/2 of the N. W. 1/4 of section 21, town 3, range 1 W., in Grant county. The defendant J. McDougal Davidson claimed title from the plaintiff, and the other defendant claimed as J. McDougal Davidson's tenant. It appears from the evidence that the 40 acres (including the 20 in question) was entered by the plaintiff May 24, 1847. The plaintiff and wife conveyed to one William Davidson the undivided one-half of that 40, including the 20 acres in question, July 29, 1848, by warranty deed, and William thereupon went into possession. June 1, 1862, J. McDougal Davidson obtained a deed from Grant county of the undivided one-half of the 40, (including the 20 acres in question,) and another 40, to-wit, the N. E. 1/4 of the S. E. 1/4 of section 20, in the same town and range, and the deed thereof was about that time recorded. August 10, 1866, J. McDougal Davidson gave to said William Davidson a power of attorney, whereby he constituted and appointed him his true and lawful attorney for him, and in his name, place, and stead, to accept the service of any process that John H. Rountree, or any other person, might seek to serve on him, in order to procure partition of any lands he might own in Wisconsin in common with any other person, or he did so constitute and authorize him to deed and properly convey all the right, title, interest, and claim that he might be possessed of to lands in Grant county, and to manage and control any suit or proceeding in his name, to make any such answer to any such proceeding or suit as in his opinion might be most for his interest, and generally to do any and all things necessary to be done and performed in or about procuring any such partition, in the same manner and to the same effect as he himself might or could do were he personally present. This was recorded August 22, 1866. August 21, 1866, J. McDougal Davidson, by William Davidson, his attorney in fact, conveyed to the plaintiff two pieces of land of 20 acres each, which it is claimed they held in common, (not including the 20 in question,) and the same was recorded August 22, 1866. August 21, 1866, the plaintiff and wife, by warranty deed, reciting a consideration of $100, conveyed to J. McDougal Davidson the S. 1/2 of the N. E. 1/4 of the S. E. 1/4 of said section 20, and also the W. 1/2 of the S. W. 1/4 of the N. W. 1/4 of said section 20, intending by such last description, as alleged by Davidson, and proved and admitted by the plaintiffs, and found by the court, to convey the corresponding 20 acres in said section 21; that is to say, the 20 acres in question, which deed was recorded August 22, 1866, and recited that it was “made for the purpose of partitioning and dividing the land therein described according to the facts.” February 6, 1869, the plaintiff and William Davidson made and entered into a written agreement, wherein and whereby the plaintiff agreed to get and take in his own name a tax deed, if he could, on each of the 20-acre pieces of land which he had so conveyed and intended to convey to J. McDougal Davidson, including the 20 acres in question, and to pay said William Davidson, at such times as he might find it convenient, in sums of five or ten dollars at a time, as much as $50 per year; and if both parties should agree to it, the sum might be increased to not exceeding $100, as above stated, for the period of not exceeding 10 years, provided William lived so long, unless the parties consented to an extension, and the said William thereby agreed to favor and facilitate the plaintiff in taking and perfecting tax-title deeds to the lands as much as he could, and to protect the timber on the land from waste or damage; and, if in his power, to repay all moneys so advanced and taxes paid, with interest at 10 per cent., payable annually; and, upon such payment being made, the plaintiff was to convey such lands to William, or to such person as he might direct. November 14, 1873, William Davidson executed and delivered to the plaintiff a quitclaim deed in the usual form, in and by which he purported to convey to the plaintiff the 20 acres of land in question, and the other 20-acre piece so conveyed to J. McDougal Davidson August 21, 1866; and at the same time the plaintiff executed and delivered to the said William Davidson an agreement in writing, wherein and whereby he agreed to reconvey to the said William the 20 acres of land in question (and the other 20 so conveyed) upon his paying the plaintiff the money he might or should owe him, with 10 per cent. interest half yearly, and due and payable, and if not paid to be counted as principal, and to draw interest at the same rate at the time such payment should be made, including taxes of every kind and nature, provided the payments were all made during William's natural life.

The answer of J. McDougal Davidson alleges the deed to him from Grant county, and also the deed to him from the plaintiff August 21, 1866, and that immediately after the making of this last-mentioned deed he went into possession, and has ever since occupied and possessed in severalty the land in question and the other lands thereby conveyed, and that he had been in the notorious and adverse possession of the land in question under that deed, and held the same and the whole thereof against the plaintiff and all the world for more than 10 years next preceeding the commencement of this suit, and was since August 21, 1866, and that the statute of limitation is thereby pleaded in bar of the plaintiff's complaint and his alleged cause of action. This action was commenced February 9, 1880. William Davidson in fact lived on the land in question from 1848 to the time of his death, which occurred a short time before the commencement of this action. For several years prior to William Davidson's death he seems to have been dependent very largely upon the plaintiff, who advanced money to and for him from time to time, and such advances amounted to seven or eight hundred dollars or more, and on account of which, it is claimed, he conveyed the lands in question to the plaintiff. The court found, as stated, the entry of the land by the plaintiff, the conveyance by him to William Davidson in 1848, as stated, and of the whole of the land in question, with the mistake as to the section to J. McDougal Davidson, August 21, 1866, the power of attorney; and also that May 14, 1878, William Davidson, as attorney in fact for J. McDougal Davidson, by virtue of the power of attorney, conveyed the lands in question to the plaintiff; that the defendants were in possession and refused to deliver the same to the plaintiff, and that his damages therefor was one dollar. And as conclusions of law the court found that the deed from the plaintiff to J. McDougal Davidson, of August 21, 1866, should be reformed according to the facts stated, that the plaintiff was the owner in fee of the land in question and entitled to the immediate possession thereof, and that the same was unlawfully withheld by the defendants and to the plaintiff's damage in the sum of one dollar. Judgment was ordered accordingly, with direction that each party pay his own costs. From the judgment entered thereon this appeal is brought.Carter & Cleary, for respondent, J. H. Rountree.

A. W. & W. E. Bell, for appellants, J. McDougal Davidson and others.

CASSODAY, J.

The mere fact that the wants of William Davidson were not recognized and supplied by J. McDougal Davidson, his relative and the object of his bounty, but were relieved by the plaintiff, is no ground for sustaining an action of ejectment in favor of the latter and against the former. In such an action the plaintiff must recover upon the strength of his own title, and not on the weakness of the defendants' title. Gardiner v. Tisdale, 2 Wis. 152. The finding of fact that the lands in question were conveyed to the plaintiff May 14, 1878, by William Davidson, as attorney in fact for J. McDougal Davidson, by virtue of the power of attorney mentioned, seems to have but very little support from the evidence. No such deed seems to have been present in court, much less offered in evidence. The only testimony in support of that finding was a statement made by the plaintiff while on the stand as a witness, under a direction of the court for him to make a statement of the whole matter. The memory of the witness as to dates and details is not very clear or satisfactory, and it may be that he referred to the deed of November 14, 1873, from William to the plaintiff,...