Wanta v. Potrykus

• Decision Date: 12 January 1932
• Citation: 240 N.W. 183,207 Wis. 282
• Parties: WANTA ET AL. v. POTRYKUS ET AL.
• Court: Wisconsin Supreme Court

207 Wis. 282

240 N.W. 183

WANTA ET AL.

v.POTRYKUS ET AL.^a1

Supreme Court of Wisconsin.

Jan. 12, 1932.

Appeal from a judgment of the Circuit Court for Ozaukee County; C. M. Davison, Circuit Judge.

Action by Helen S. Wanta, and others, against Katarzyna Potrykus, Anna Perszyk, and others. From a judgment for plaintiffs, last-named defendant and another appeal.--[By Editorial Staff.]

Reversed and remanded, with directions as to appealing defendants.

Action commenced April 24, 1930, to quiet title to land. From a judgment for plaintiffs entered December 16, 1930, defendants Anna Perszyk and Mamie Perszyk appealed.Quarles, Spence & Quarles, of Milwaukee (Howard T. Foulkes and Kenneth P. Grubb, both of Milwaukee, of counsel), for appellants.

J. E. Kitzke, of Milwaukee, for respondents.

FRITZ, J.

Five of the plaintiffs are the children and heirs at law of John and Marcianna Schramka,and as such heirs instituted this action to establish their title and claim against any claim of the defendants to the land involved herein, and to forever bar the defendants from claiming any right, title, or interest to or in such land adversely to plaintiffs. The defendants, respectively, are the surviving widow, children, and heirs of Teofil Potrykus, and the wife of one of those children. Only Anna Perszyk and Mamie Perszyk filed an answer and cross-complaint to plaintiffs' complaint. They alleged that each was an heir at law of Teofil Potrykus, who owned the land in fee simple when he died on August 17, 1918, and that each was entitled to an undivided two-ninths interest in the land. After a trial upon the merits, the court found that the plaintiffs, in connection with their predecessors in title, have been in uninterrupted adverse possession of the land, with title founded upon a written instrument, for more than ten years, and are now in such possession; and that the claims of the defendants are unfounded and extinguished. Judgment was ordered accordingly, and Anna and Mamie Perszyk appealed.

The land in question was owned in fee simple by Marcianna Schramka at the time of her death in June, 1912. She was survived by her husband, John Schramka, and six children, five of whom, together with the wives of two of them, are the plaintiffs in this action. She died intestate, and consequently each of her six children and heirs became entitled to an undivided one-sixth interest in the land, subject to the life estate, as tenant by curtesy, of their father, John Schramka, who as such tenant by curtesy was entitled to the possession of the land, and continued in possession thereof, as tenant by curtesy, until his death in May, 1927. He failed to pay the 1912 taxes, and in May, 1913, the land was sold for nonpayment of taxes, and on August 21, 1916, a tax deed was executed to William Ahlhauser, who, with his wife joining, executed a quitclaim deed on August 22, 1916, conveying the land to Teofil Potrykus. Each of those deeds was duly recorded on the next day after its execution. Teofil Potrykus and his wife executed a quitclaim deed for the land, which, as recorded on July 2, 1920, named Odelia C. Ahlhauser as grantee and had August 23, 1918, as the date thereof and as the date of the acknowledgment. However, Teofil Potrykus had died on August 17, 1918, five days prior to the date which appeared on the deed, as recorded, as the date of the deed and of the acknowledgment thereof. That discrepancy in dates is due to the fact that the deed had been altered in several respects.

Thus, in its original form, the date thereof, as well as of the acknowledgment, was August 23, 1916; the grantee was John Schramka instead of Odelia C. Ahlhauser, and the name of one of the witnesses to the deed was Ada M. Ahlhauser instead of Ada M. Raeder. The latter change was made because that witness to the deed, after having, as such witness, signed her maiden surname on August 23, 1916, had become married prior to August 23, 1918, and, when the dates in the deed were changed to August 23, 1918, her married surname was substituted for her maiden name. There was no proof as to any actual delivery of that deed. It was produced in this action at the taking of a deposition of Edward Potrykus, who is a son of Teofil Potrykus, and who had had possession of that deed ever since his father's death, at which time Edward found that deed with other papers of his father, which the latter kept in a box in the attic of his home. There is no evidence that any other written instrument relating to that land ever existed ten or more years prior to the commencement of this action, upon which plaintiffs can base any claim of title. They do claim that they are the owners as heirs of John Schramka, and that he acquired the record title by virtue of the altered deed which Teofil Potrykus executed, and which was originally dated August 23, 1916; and they also claim that they and their predecessor, John Schramka, were in uninterrupted adverse possession from 1900 to 1930.

On the other hand, the title claimed by the defendants Anna and Mamie Perszyk is based on a deed conveying the land to their father, Teofil Potrykus, on November 27, 1916, which was three months after the execution by Teofil Potrykus, on August 23, 1916, of the altered deed referred to heretofore. On November 27, 1916, the five children of Marcianna Schramka, who are the plaintiffs in this action, together with the sixth child, made and acknowledged a quitclaim deed, in which they, described as “being all the children and sole and only heirs of Marcyana Schramka,” conveyed the land to Teofil Potrykus. He thereby acquired the interests and estate of the plaintiffs as remaindermen subject to the life estate, because of the right of curtesy, of John Schramka. Teofil Potrykus never conveyed that estate in remainder, and upon his death intestate that estate passed, under the statutes of descent, to his heirs, including the defendants Anna and Mamie Perszyk, each of whom thus acquired an undivided two-ninths interest. Furthermore, on July 20, 1922, in the county court of Ozaukee county, on an application for a certificate of descent of land of Marcianna Schramka, John Schramka stated, under oath, that his interest in the land was by right of curtsey as the widower of Marcianna Schramka, and that the interest of the children and heirs (which included the five who are plaintiffs in this action) of Marcianna Schramka was and is subject to his right by curtesy.

[1][2][3][4] The trial court rightly ruled that unauthorized alterations, subsequently made by a stranger, in the deed executed by Teofil Potrykus, under date of August 23, 1916, did not invalidate that deed or affect any title or interest which became vested under that deed. 2 C. J. p. 1179, par. 10, p. 1185, par. 24; Wilke v. Wilke, 28 Wis. 296;Parker v. Kane, 4 Wis. 1, 65 Am. Dec. 283. However, no interest or title became vested by virtue of that deed, and it never became operative for any purpose unless it was delivered, at least constructively, during the lifetime of the grantor. 18 C. J. 210, note 35, p. 211; Chaudoir v. Witt, 170 Wis. 556, 170 N. W. 932, 174 N. W. 925;Curry v. Colburn, 99 Wis. 319, 321, 74 N. W. 778, 67 Am....