Tucker v. Whittlesey

• Decision Date: 19 February 1889
• Parties: TUCKER ET AL. v. WHITTLESEY ET AL.
• Court: Wisconsin Supreme Court

74 Wis. 74

41 N.W. 535

TUCKER ET AL.

v.WHITTLESEY ET AL.

Supreme Court of Wisconsin.

Feb. 19, 1889.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.

Action by Mary A. Tucker and others, widow and minor heirs of Charles C. Tucker, deceased, against Lucy M. Whittlesey and others. The complaint prays that an amicable partition between Asaph Whittlesey and Charles C. Tucker, made in 1873, be established, upon payment into court of the amount necessary to redeem any of the lands from taxes; that all claims based on tax deeds of any of the lands be annulled; that the proceedings in a suit by the Whittleseys for partition be set aside, and all claims under them be annulled; and for other relief. The lands in question were patented by the United States to Schuyler Goff, judge of La Pointe county, under the town-site law, and were conveyed by John W. Bell, county judge of Ashland county, to Asaph Whittlesey and Charles C. Tucker. Defendants appeal. By Rev. St. Wis. § 1166, “the lands of minors, or any interest they may have in lands sold for taxes, may be redeemed at any time before such minors come of age, and during one year thereafter. * * *”Lamoreux & Gleason and Tomkins, Merrills & Smith, for appellants.

G. W. Hazelton, ( T. L. Kennan, of counsel,) for respondents.

COLE, C. J.

The partition made at the July term of the circuit court of Ashland county, in 1877, is directly in the way of the plaintiffs having the relief asked in this case. That judgment attempts to make partition of the real estate between the parties, and, unless it is invalid for some reason, is conclusive as to their rights. It is insisted by the counsel for the respondents that the proceedingsin that action are wholly void for several alleged defects.

First, it is said that that partition suit was commenced without summons, which it is insisted was essential under the statute. It appears that all the defendants in that case were non-residents, and jurisdiction was acquired by publication of the order as prescribed in section 11, c. 142, 2 Tayl. Rev. St. Section 1, c. 124, Id., which prescribes how civil actions in courts of record shall be commenced, did not apply to this partition proceeding. Foster v. Hammond, 37 Wis. 185. In that case the chief justice says: “In actions of partition, service out of the state, on non-resident defendants, of the summons and complaint, is unauthorized by statute, and therefore extra judicium. Instead of service of the summons and complaint, the statute provides for service out of the state on non-resident defendants of an order in the cause requiring the parties to appear and answer by a day specified in the order. This is the mode, and the only mode, provided in such cases for service on defendants out of the state.” This is all the answer necessary to give to the objection that the suit should have been commenced by summons.

It is further objected that the order to publish was made before the complaint was filed, and that the court had no power to make the order under the decision in Anderson v. Coburn, 27 Wis. 558, and Cummings v. Tabor, 61 Wis. 185, 21 N. W. Rep. 72. Anderson v. Coburn was a case of attachment against a non-resident defendant having property in this state, and jurisdiction was attempted to be acquired by publication. The court held that the statute made it an essential prerequisite to that mode of service that the complaint should be first filed. Cummings v. Tabor was likewise an attachment instituted under our present statute, which is somewhat different from the former one, and requires a duly verified complaint to be filed, upon which the order of publication is based. It is apparent that these decisions have no application to the partition proceeding, which is regulated, as to the mode of acquiring jurisdiction of the defendants, by the provisions of chapter 142 itself. The record in the partition suit shows that the order for the defendants to appear and answer was dated January 11, 1877, while the complaint was sworn to January 20th. It is fair to assume that the complaint was not filed before it was verified, but the statute does not require it should be so filed before the order was made.

It is further said that the affidavit for the order was fatally defective because not made by both the plaintiffs in the action. The action was by Whittlesey and wife as plaintiffs, and the affidavit was by Whittlesey alone. He stated that none of the defendants resided in the state, but all were residents of the city of Washington, in the District of Columbia. Section 11, c. 142, provided, where any of the parties having an interest in the lands to be partitioned resided out of the state, and such fact was made to appear to the court by affidavit, the court was authorized to make the prescribed order, which should be served personally or by publication, as the court should designate. If the court was satisfied by the affidavit of one of the plaintiffs that the defendants were non-residents, it was justified in making the order. On this point counsel referred to Kane v. Rock River Co., 15 Wis. *179, and Mecklem v. Blake, 19 Wis. *398, which hold, where there are several plaintiffs in a partition action, the affidavit as to unknown owners should be made by all of them to enable a court to make the order; but this was because the owners might be unknown to one plaintiff, but well known to the other plaintiffs. That is the reason of the rule there laid down. But, when one plaintiff positively states in his affidavit that the defendants are all non-residents, this may satisfy the court of the fact as fully as though all the plaintiffs swore to it. The fact of non-residence must of course be made to appear to the court by affidavit in the language of the statute. The order for publication seems to meet literally all the requirements of section 11, and must be held sufficient. The affidavit of the publisher of the designated paper shows that a proper publication was made. So these objections to the proceedings, that the court did not acquire jurisdiction in the action, are not well taken.

There is, however, a further objection taken to this judgment of partition which we think is sound, and must prevail. It is said the judgment is wholly void for this reason: that Whittlesey applied to the court for partition without disclosing the fact in the complaint, or in some proper manner, that Tucker and wife, before that suit was instituted, had, at the instance of Whittlesey, joined in deeding to Mrs. Whittlesey, and to other parties named by Whittlesey, 11 2/3 of the most valuable lots owned by them in common, on condition that other lots of equivalent value should be deeded to Tucker. The fact that such conveyances were made with the understanding or upon the condition just stated is not denied, and may be assumed as conclusively established in the case. The question, then, is, did not the suppression of this fact in the partition suit amount to a fraud which should avoid the judgment? We think it should have that effect, under the circumstances of this case. It appears that Whittlesey and Tucker were equal owners in about 80 lots in the village of Ashland. Tucker lived in Washington, D. C., and Whittlesey at Bayfield, Wis. In 1873 the parties attempted to make an amicable division of these lots; Whittlesey acting for himself, and one Tate acting as attorney for Tucker, in the matter. In the division 11 lots were set off to Tucker as equivalent for those previously deeded by Tucker and wife at the instance of Whittlesey. This division was not satisfactory to Tucker, and he declined executing a deed for the lots which had been set off to...