Weber v. Nedin

• Citation: 210 Wis. 39,242 N.W. 487
• Parties: WEBER v. NEDIN.
• Decision Date: 10 May 1932
• Court: United States State Supreme Court of Wisconsin

210 Wis. 39

242 N.W. 487

WEBER

v.NEDIN.

Supreme Court of Wisconsin.

May 10, 1932.

Appeal from an order of the Circuit Court for Milwaukee County; August E. Braun, Circuit Judge. Affirmed.

The plaintiff, Rose Nagy Weber, commenced this action on the 5th day of January, 1931, against the defendant Tomas Nedin. From an order overruling a demurrer to the complaint, entered on the 1st day of September, 1931, the defendant appeals.Douglas J. Mangan, of Milwaukee, for appellant.

Pellette & Zillmer, of Milwaukee, for respondent.

OWEN, J.

The plaintiff brings this action to clear her title to certain real estate of which her mother, Sophie Nagy, alias Sofi Nedin, died seized on the 20th day of December, 1924. Plaintiff's mother obtained title to the premises in question by virtue of a deed executed by Henry Nehrbass and Hattie Nehrbass, his wife, to Tomas Nedin and Sofi Nedin, on the 28th day of November, 1924. The opening recital contained in this deed reads as follows: “This Indenture, made this 8th day of November, A. D. 1924, between Henry Nehrbass and Hattie Nehrbass, his wife, of the city and county of Milwaukee, Wis., said Henry Nehrbass having obtained title while a widower, party of the first part, and Tomas Nedin and Sofi Nedin, his wife, and to the survivor of either, of the same place, parties of the second part.”

The granting clause of the deed conveys the premises described to “the said parties of the second part, their heirs and assigns forever.” The plaintiff claims title to the premises as the sole heir at law of her mother, Sophie Nagy, alias Sofi Nedin, one of the grantees of said deed. The defendant Tomas Nedin claims title to the premises as the survivor of Sofi Nedin, with whom he claims he acquired title to the said premises in joint tenancy. The question presented is whether the deed under which Tomas and Sofi acquired title created a joint tenancy or a tenancy in common.

[1] The complaint alleges that, while Tomas and Sofi cohabited together as husband and wife, they were never married, and at the time of the commencement of their illicit relations the said Sofi had a husband living. The rule of construction prescribed by section 230.44 Stats., that “All grants and devises of land made to two or more persons, except as provided in section 230.45, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy,” therefore applies. The deed is to be construed to create an estate in common, unless the deed expressly declares the estate created to be one in joint tenancy. The appellant contends that this deed does so declare. This contention is based upon the phrase in the deed, “and to the survivor of either,” found in the opening recital above set forth. He contends that the use of this phrase in...