Whitney v. Robinson

• Decision Date: 03 November 1881
• Citation: 53 Wis. 309,10 N.W. 512
• Parties: WHITNEY v. ROBINSON AND OTHERS.
• Court: Wisconsin Supreme Court

53 Wis. 309

10 N.W. 512

WHITNEY

v.ROBINSON AND OTHERS.

Supreme Court of Wisconsin.

Filed November 3, 1881.

Appeal from circuit court, Green Lake county.

This is an action of ejectment, tried by the court, to recover the following described real estate, situated in the county of Green Lake and state of Wisconsin, to-wit: Commencing at the south-east corner of the W. 1/2 of the S. W. 1/4 of section 14, in township 14 north, of range 13 east, and running thence west 11 1/2 rods; thence north 10 rods; thence east 11 1/2 rods; and thence south 10 rods, to the place of beginning, containing 115 square rods of land. It was admitted by both parties, on the trial, that in 1863 William M. Butler was the owner in fee of the premises in question. It also appeared that, November 16, 1863, William M. Butler, of Mackford, Green Lake county, Wisconsin, under his hand and seal, and in the presence of two witnesses, who signed their names thereto as such, executed a certain indenture and lease wherein and whereby he leased, demised, and let unto the trustees of the Methodist Episcopal and Free-Will Baptist Churches of said Mackford, in trust, a certain piece or parcel of land for the purpose of erecting a church or meeting-house thereon, beginning at the south-east corner of W. 1/2 S. W. 1/4; running west 11 1/2 rods; thence north 10 rods; thence east 11 1/2 rods; thence south 10 rods, to the place of beginning, containing 115 square rods; the said trustees, in trust for said churches, to have the use and control of said piece of land so long as they choose to occupy it for a church or meeting-house, and no longer; the said trustees in trust are to keep up a good fence between said lot and said Butler's land so long as they occupy the same; and when said trustees in trust shall cease to occupy said land for the purposes therein mentioned, they were to deliver up to said Butler the use thereof. The lease was also executed by the defendants Joshua Soule and Thomas Richards, and also by A. L. Rector and Joseph Day, who appear, from the testimony, to have been trustees at the time. It was admitted on the trial, for the purposes of the suit, that the defendants were in possession of the premises, and the same was alleged in the complaint. Joseph Day testified, in effect, that in 1863 he was one of the trustees of the Free-Will Baptist Church in Mackford; and that they procured a lease of Butler and built a church upon his land; and that he and Butler and the other trustees signed the lease; that he was one of the committee to locate the house; and that they got of Butler, to build a church upon, the corner piece of land in the four corners of the road, about three-fourths of an acre off of William Butler's farm, occupied by him, 50, 60, or 100 rods from Butler's house; that they took the lease, and built the church on the piece of land so bargained for with Butler; that one road run north and south, and the other east and west, and the church was built in the south-west corner of the lot; that it was a very nice house, 44x32 feet, and finished in 1863, and well occupied ever since, services being held there nearly every Sabbath by meetings and Sabbath-school classes; that it had been kept occupied all the time by one or the other denominations; that a high fence was built by the two churches around on the inside of the church lot, but no fence on the outside. Ira Butler, a son of William M. Butler, testified, in effect, that the part of his father's farm on which he resided in 1862 and 1863, and upon which the church stood, was on section 14; and that the church was about 100 rods from his father's house, and his father continued to own and occupy the premises until 1878, when he moved away; that his father attended this church frequently, and had knowledge of the occupation of it by both these sets of trustees referred to in the lease; that there had been a fence a part of the time between the church lot and his father's land, but no road fence; the road was on two sides of the church lot, and his father's land on the other two sides, with the fence between; that in 1868 or '9 he was acting as one of the trustees of one of the churches named in the lease, and the lease then came into his possession from his predecessor, Moses Sherwood; and that he retained the lease, as such trustee, from 1868 or '9 to 1879; and that, at the time of testifying, Sherwood was acting as trustee of the Free-Will Baptist Church. It also appears from the evidence, on the part of the plaintiff, that, March 23, 1874, William M. Butler gave a mortgage on his land, including the land in question; and that the same was foreclosed; and that the lands covered by the mortgage were conveyed to the plaintiff December 20, 1874, by the sheriff's deed on such foreclosure sale.Fish, Thompson & Comstock, for respondent.

A. Scott Sloan, for appellants.

CASSODAY, J.

The plaintiff's claim to the title of the land in question is based upon the sheriff's deed of December 20, 1879, given on the foreclosure of the mortgage executed by Butler March 23, 1874. It is conceded that neither of the churches, nor any of their trustees, named in the lease given by Butler to them November 16, 1863, were parties to that foreclosure. This being so, and the fact appearing, as it does, that at the time of the execution of the mortgage there was a building upon the premises in question, in the possession and occupancy of said societies, and their trustees under the lease, as a church, with a fence between those premises and the balance of Butler's land, and it becomes very evident that the plaintiff only acquired through such foreclosure such right, title, and interest as Butler had at the time of making the mortgage, March 23, 1874. The purpose of that foreclosure was merely to shut out and forever bar and destroy the equity of redemption existing in Butler, and those claiming under him, subsequent to the execution of the mortgage. In the language of Harris, J., in Holcomb v. Holcomb, 2 Barb. 23, “the object of the bill [to foreclose] is to vest in the purchaser under the sale, made by virtue of the decree of foreclosure, the same...