Lee v. Simpson , 29 Wis. 333 ( 1872 )

Tbe following opinion was filed at tbe June term, 1871:

DixoN, C. J.

Tbe first count of tbe complaint alleges tbat tbe deed of conveyance, dated May 10, 1863, executed by tbe defendants Samuel Simpson and Sydney Simpson, bis wife, to tbe defendant Sophia A. Bagan, and delivered to her husband, tbe defendant Ransom Bagan, for her, on tbe 2d day of June, 1863, was in fee simple and absolute, and that it was so intended to be made and delivered in satisfaction of tbe mortgage debt Tbe averment is, tbat tbe husbands Samuel Simpson and Ransom Ragan, were “ acting as, and were, tbe agents of their said wives respectively ” at tbe time tbe deed was delivered, and in relation to tbe business then transacted between them, and tbat “ they entered into an arrangement or agreement tbat tbe proceedings to enforce said mortgage should be satisfied and discharged, in consideration of wbicb tbe said Samuel Simpson and Sydney Simpson should convey said premises to the said defendant Sophia A. Rayan absolutely and forever, in satisfaction of said mortgage debt; that, thereupon, the said Samuel Simpson delivered the aforesaid deed of conveyance so executed and acknowledged by him and his said wife to the said Ransom Ragan for the said Sophia A. Ragan, and as her agent, who on the same day caused the same to be recorded,” etc. The pleading then proceeds with a statement of an agreement in writing entered into at the same time between the parties, setting out the agreement in hcec verla, by which the Ra-gans leased the premises to the Simpsons for a short period, and agreed to sell the same to them, at the expiration of the lease, for $1,400, if not previously sold.

The agreement on its face does not operate as a defeasance, or show that the title conveyed by the deed was conditional, It does not appear from the agreement, nor from any averments contained in the complaint that the deed was intended as security for the payment of $1,400 or any other sum, or that Mrs. Simpson or her husband was to have any right of redemption. The pleader seems carefully to have avoided any statement or admission from which it could be inferred that the deed was to operate as a mortgage. It is true, it is averred that the plaintiff, since he purchased and paid for and received a conveyance of the premises from the Ragans, has ascertained that the Simpsons “claim and pretend” that the deed executed by them was intended as a-mortgage, and was, in fact made and delivered by them only for the purpose of securing payment to the Ra-gans of the sum of $1,400. It is also true the plaintiff demands relief “ that if, as is pretended by the defendants, .Sydney Simpson and Samuel Simpson, the claim and title of the said plaintiff, in the first count of this complaint mentioned, shall be adjudged to be a mortgage, an account may be taken of the amount due thereon for principal and interest,” etc. The complaint does not, however, anywhere admit, nor intend to, that there is any foundation whatever, either in law or in fact, for these claims and pretenses. The intention merely is to aver that such claims and pretenses are made, without admitting their truth, and without admitting the existence of any facts inconsistent with the absolute legal title of the plaintiff under the same deed.

Construing the pleading, therefore, according to its clear intent and meaning, it avers the unqualified legal title and ownership of the lands to be in the plaintiff, and that the defendants, Simpson have no right or valid claim of title thereto, either at law or in equity. The demurrer to the first count, of course, admits these facts; and the question then arises, whether the count states any cause of action in equity. It appears from the same count that the plaintiff is not in possession of the lands, but that the defendants Samuel and Sydney Simpson aw, and they demur to the ¡Heading because it does not state facts sufficient to constitute a cause of action. It would seem that their demurrer is well taken. The plaintiff having the legal title, and neither averring nor admitting any equitable title or interest in these defendants, and not being himself in possession of the lands, but the same being adversely held and possessed by the defendants, cannot maintain his suit in equity against them. He has an adequate and unquestionable remedy at law, by his action of ejectment; and to that action he must resort It is only the person having the possession and legal title to the land who may institute his suit quia timet in equity against any other person setting up a claim of title thereto. E. S., ch. 141, sec. 29; Maxon v. Ayers, 28 Wis., 612. The first count sets up no other cause or ground for equitable relief than such claims and pretenses, which are apparently unfounded; and it will be time enough for the plaintiff to meet and refute them when interposed, if they should be. by way of equitable defense to his action of ejectment, which he may commence at any moment.

The first count being demurrable because it states no cause of action, it follows that there is no misjoinder of causes of action, and consequently, that the demurrer on the latter ground cannot be sustained. It is only where tbe inconsistent counts each state a good cause of action, that tbe demurrer for mis-joinder or multifariousness will bold. Bassett v. Warner, 28. Wis., 673 ; Truesdell v. Rhodes, 26 id., 215.

By the Court. — Tbe order overruling tbe demurrer is reversed, and tbe cause remanded witb directions that tbe demurrer to tbe first count of tbe complaint be sustained.