Slauson v. Goodrich Transp. Co.

• Decision Date: 22 March 1898
• Citation: 99 Wis. 20,74 N.W. 574
• Parties: SLAUSON v. GOODRICH TRANSP. CO.
• Court: Wisconsin Supreme Court

99 Wis. 20

74 N.W. 574

SLAUSON

v.GOODRICH TRANSP. CO.

Supreme Court of Wisconsin.

March 22, 1898.

Appeal from circuit court, Racine county; John Goodland, Judge.

Action by Emily Slauson against the Goodrich Transportation Company. From a nonsuit and judgment for defendant, plaintiff appeals. Affirmed.

Ejectment. The complaint is in the ordinary form, alleging that plaintiff is the owner and entitled to the possession of the premises described, and that defendant unlawfully withholds possession. The answer is a general denial, and a further defense that plaintiff nor her ancestors or grantors had been possessed of the premises within 20 years preceding the commencement of the action. A judgment for plaintiff on the merits was affirmed in this court. 94 Wis. 642, 69 N. W. 990. Within the time limited by statute, defendant paid the costs, and took a new trial. At the opening of the trial, plaintiff's counsel made the following statement: “It is conceded for the purposes of this trial that Isaac Taylor, in his lifetime, owned all the lands between Second street and Root river that lay east of a point 140 feet east of the east line of Chatham street.” Counsel for defendant responded: “I will examine the abstract of title and the deeds of the lands referred to, and I will inform you [addressing Mr. Fish, plaintiff's counsel] to-morrow morning whether I will agree to your requested stipulation or not.” No further reference to this stipulation appears in the bill of exceptions. Plaintiff's counsel then offered in evidence a deed from one Taylor and wife to William Waterman, said to describe a piece of land immediately west of the lands in controversy. The date or place of record of this deed does not appear. Next, the will of Isaac Taylor, in which Emeline Taylor is named as devisee, was offered. Then followed a deed from Emeline Taylor to James H. Kelly, George Murray, and George W. Slauson. This deed purports to convey parts of block 7 of the original plat of Racine, and is assumed by plaintiff's counsel to cover the land in suit, but there is no evidence in the bill of exceptions from which this fact can be definitely determined. Plaintiff's counsel then called a witness for the purpose of showing “where Root river was at the time this deed was made.” This testimony was objected to, and the objection sustained. Plaintiff's counsel then offered to make further proof along that line, and to show title from Kelly and Murray, through mesne conveyances, to plaintiff, of the property claimed in her complaint. References were made to plat No. 1 and map No. 8, which were offered by plaintiff, but which are not preserved in the bill of exceptions. Plaintiff thereupon rested her case. A nonsuit was granted, and judgment was entered for defendant, from which this appeal is taken.Quarles, Spence & Quarles, for appellant.

Dodge & Fish, for respondent.

BARDEEN, J. (after stating the facts).

We are placed at some disadvantage by reason of a dispute having arisen between counsel as to the actual facts that were before the trial court at the time the motion for nonsuit was granted. A reference to the bill of exceptions, however, seems to settle the contention adversely to the claims of appellant. Neither have we been favored by any definite assignment of error upon which appellant relies, unless it be the broad statement that the court erred in the granting of a nonsuit. This requires an examination of the evidence received and offered on the trial, and the rulings of the court thereon. A party claiming title and right to possession of land, under a very familiar rule, must recover upon the strength of his own title, rather than upon the weakness of the title of his adversary. Ordinarily, the plaintiff must connect himself with the government title, unless both parties claim from a common source, as was the case in Sexton v. Rhames, 13 Wis. 99. But here neither the pleadings nor the proof offered show a common grantor. There is not a whisper in the evidence indicating from what source respondent claims title. Neither does the answer disclose any information from which a deduction can be made as to the source of respondent's title, nor does the evidence received or offered show that respondent was, or ever had been, in possession of the land. Such being the state of the record, it became necessary for the appellant either to connect herself with the government title or with some grantor who was the common source of title. Such necessity seems to have been in the mind of counsel for appellant when he asked for the stipulation referred to in the statement of facts. The stipulation not having been consented to, and there being a failure of appellant to connect herself with the original title, it followsas a necessary conclusion that her title failed, and the nonsuit was properly ordered.

Still further, there was no evidence that appellant or her grantors had ever been in possession of the disputed premises, so as to give rise to any presumptions which such possession might give. Ablard v. Fitzgerald, 87 Wis. 516, 58 N. W. 745. But, if this were not so, there is still another reason why, under the situation presented, the conclusion of the trial court was right. When evidence was offered to show the condition of things at the time of the execution and delivery of the deed from Emeline A....