Tait v. Pixley

• Citation: 253 Wis. 483,34 N.W.2d 775
• Parties: TAIT et al. v. PIXLEY et al. WEYGAND v. TAIT et ux.
• Decision Date: 18 January 1949
• Court: United States State Supreme Court of Wisconsin

253 Wis. 483

34 N.W.2d 775

TAIT et al.

v.PIXLEY et al.

WEYGAND

v.TAIT et ux.

Supreme Court of Wisconsin.

Nov. 16, 1948.

Rehearing Denied Jan. 18, 1949.

Appeals from two judgments of the Circuit Court for Rock County; Jesse Earl, Circuit Judge, presiding.

Reversed and remanded.

On October 7, 1946 Ruth Winston Weygand, plaintiff, commenced an action against Harold L. Tait and Dorothy Tait, his wife, defendants, seeking to set aside a certain quitclaim deed from plaintiff to defendant, Harold L. Tait. On July 18, 1947 Harold L. Tait and James W. Ames, plaintiffs, commenced an action against Elizabeth Pixley, Samuel Cadwalleder; Nelson Winston and Eliza Ann Winston, his wife, et al., defendants, to quiet title in plaintiff of certain lands including the land described in the quitclaim deed and involved in the first action. The actions were consolidated for trial. By stipulation the evidence was made applicable to each action and a single set of findings was entered by the court. Separate judgments were entered on February 20, 1945 in favor of plaintiff in the first action and in favor of defendants in the second action. There is a single bill of exceptions. Harold L. Tait and Dorothy Tait appeal in each action. The material facts will be stated in the opinion. Walter E. Nitcher, of Evansville, for appellants.

Leon Feingold, of Janesville (George H. Murwin, of Janesville, of counsel), for respondents.

WICKHEM, Justice.

On September 17, 1929 Agnes R. Winston conveyed to James W. Ames six and one-half acres including most of the land designated as outlot 11 upon the accompanying plat. The description was by reference to the boundary lines of various other adjoining owners. Outlot 11 and the adjoining land had been in the Winston family since 1855. Agnes Winston died in 1944. This controversy relates to a plot of ground immediately to the north of outlot 5 and indicated by a rectangular marking on the diagram. The disputed property was not included in the probate of the estate of Agnes Winston. On March 26, 1946 plaintiff, Ruth Winston Weygand, executed and delivered to Carroll E. Babcock and Buletta C. Babcock, his wife, a warranty deed to outlot 5 and in April, 1946 Babcock put a new roof on a barn located on the disputed strip north of outlot 5. In May, 1946 Harold L. Tait became interested in buying Outlot 11 for purposes of subdivision. He and the owner Ames were unable to determine the location of the southern boundary because most of the owners of lots to the south were using the vacant wood lot. In May and June of 1946 Ames and Tait solicited the abutting owners to contribute to the cost of having a survey made. Babcock indicated that he was not interested. Tait having found out that Babcock's deed was to outlot 5 then consulted with the Winston attorney, Mr. Fred L. Janes, and was informed that Mrs. Weygand owned the land in the disputed area where the barn was located. Mr. Janes prepared a letter to Mrs. Weygand reciting that Dr. Ames had purchased the woodlot from Mrs. Winston and had sold the lot to Mr. Tait; that the disputed area was omitted by mistake leaving a three-rod ‘chunk of land in between the lot sold to Mr. Babcock and the land your mother sold to Dr. Ames.’ The letter proceeds to state that the small piece of land is of no use to Mrs. Weygand but will help Mr. Tait and Ames in completing the deal. The letter further states that he had told Mr. Tait that he thought Mrs. Weygand would be willing to convey this piece of land by quitclaim deed. He accompanied the letter with a small sketch of the land. On July 17, 1846 Tait called on Mrs. Weygand and showed her the letter. He claims that he made no statements concerning the land and that he simply referred to the letter and sketch. He asked for an abstract but was told that the abstract would cost more than the land was worth. Mrs. Weygand finally signed the quitclaim deed.

Plaintiff's Exhibit 4

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Mrs Weygand testified in support of the charge that the deed was obtained by fraud, that she knew how many feet there were in a rod; that she read Mr. Janes' letter more than once; that she thought that the land involved was a narrow strip fifteen feet wide of on interest to her; that she did not know that the barn was on the premises; that she does not know who told her and was unwilling to testify that Mr. Tait told her that the land...