Eaton v. Lyman , 28 Wis. 324 ( 1871 )

DixoN, C. J".

This case comes here for the third time, and upon questions differing from those heretofore decided. Eaton v. Lymans, 24 Wis., 438; Same v. Same, 26 Wis., 61. The question of Lyman's being bound by the judgment in the action of Baton v. Brickies is altogether out of the case. The bill of exceptions contains no evidence upon that point, and is certified to contain all the evidence necessary to present the questions arising upon the exceptions taken. The record, therefore, of the proceedings and judgment in Eaton v. Frickles, given in evidence by the plaintiff, was no proof of paramount title against the defendant. The position that it was, or that Lyman was bound by that judgment, is said to have been abandoned in the court below ; but whether for the reasons stated by this court in its last opinion, or for others, does not appear. At all events, the evidence of paramount title to charge the defendant with full damages for breach of the covenant sued upon, and to justify the instruction of the court to the jury to which exception was taken by the defendant, is to be found elsewhere than in the record and judgment in Eaton v. Frickles. Tbe court directed a verdict in favor of tbe plaintiff for $850, witb interest at seven per cent, from tbe 26tb day of March, 1865. An examination of tbe bill of exceptions does not disclose any evidence of paramount title in tbe plaintiff justifying tbis direction. Tbe only evidence offered or given by tbe paintiff to sbow sucb title, was a tax deed from Brown county and tbe state of Wisconsin to H. Eugene Eastman, for 45 acres of tbe land in controversy, dated December 81st, 1867, and a quit-claim deed from Eastman and wife to tbe plaintiff, dated October 16tb, 1868. Botb those deeds were executed after tbis action was commenced, which was in March, 1867, and they were of course no evidence of paramount title in tbe plaintiff upon which tbis action can be sustained.

It is true tbe plaintiff gave in evidence tbe tax deed executed in 1863 upon tbe sale of 1851, but, as tbe bill of exceptions states, “for tbe purpose of showing incumbrances.” That deed was not offered or relied upon by tbe plaintiff as evidence of title in himself.

Tbe plaintiff likewise gave evidence of some other incum-brances to a small amount, for taxes due and unpaid on tbe land at tbe time of tbe conveyance by Lyman to Brickies, and which have been paid off or removed by tbe plaintiff. As tbe assignee of Brickies, tbe plaintiff may, perhaps, if tbe pleadings are properly framed, be entitled to recover tbe sums so paid to remove incumbrances; but they amount to nothing like tbe sum for which tbe court directed verdict, and which can only be recovered by proof of paramount title in tbe plaintiff, upon which be evicted Brickies. No sucb title was proved, and tbe judgment must be reversed, and a new trial awarded.

By the Court. — It is so directed.