McKinley v. Weber , 37 Wis. 279 ( 1875 )

Lyoít, J.

If the sheriff’s deed conveyed a good title to the land described therein, the defendant, at the time the grass was taken therefrom, was the owner of an undivided half of the land by virtue of the deed thereof executed by John Lorrain to him, and was tenant in common of the whole premises with Shewell Lorrain, or (he being dead) with his heirs.

If the land at that time belonged to the defendant and Show-ell Lorrain, or his heirs, as tenants in common, by virtue of such conveyances, it necessarily follows: 1. That the question of adverse possession under the statute of limitations is not involved in the case, because the alleged trespass was committed within less than ten years after the execution of the sheriff’s deed. 2. That the defendant is liable to account to his coten-ant, in some form of action, for the interest of such cotenant in the grass so taken ; and consequently, that the plaintiff cannot maintain an action therefor. See R. S., ch. 89, sec. 38; Hannan v. Osborn, 4 Paige, 336; Hungerford v. Bedford, 29 Wis., 345. 3. That'the tax deed, and the rulings of the court in respect to it, are of no importance in the case, the other conveyances constituting a perfect defense to the action.

Hence, the case depends entirely upon the sheriff’s deed. If that is valid, the court gave the jury the proper direction, and the verdict and judgment should not be disturbed. If invalid, the defense fails (unless sustained by the tax deed), and the judgment should be reversed.

When the sheriff’s deed and the conveyance from John Lor-rain to the defendant were put in evidence, the defendant thereby established a perfect defense, prima facie, to the action. Laws of 1869, ch. 40 (Tay. Stats., 1610, § 128). To rebut such defense, the record in the case of Hambley v. McKinley was introduced on behalf of the plaintiff; and his counsel claims that it shows that the judgment in that action is void, and if not void, that the execution thereon was issued in violation of the statute. The principal objection to the validity of the judgment is, that it was entered in term time by the clerk without any order or adjudication by the court. This objection is fully answered and overruled in Bunker v. Rand, 19 Wis., 253, where it was held that a judgment substantially in the same form, entered under very similar circumstances, must be presumed to be the judgment of the court. In this case the plaintiff introduced “ the records of the minutes of the court,” that is, of the circuit court for Iowa county, for the Septefhber term, 1858, and the same failed to show that an action had been commenced on a judgment granted against James McKinley, the present plaintiff. It is supposed that the evidence was the minute-book of the clerk. The fact that tbe court bad rendered judgment in a given case would ordinarily be there noted. But it is by no means essential ,to the validity of a judgment that it should be so noted. The absence of an entry, especially where the judge of the court, on a day in term, signed an order awarding execution on the judgment, is at most a mere irregularity, which does not destroy the presumption thakthe judgment was rendered by the court.

The objection that there was no proof of the service of summons, of the failure of the defendant to answer, and of the plaintiff’s claim, has no foundation in fact; for the record contains such proofs. The record fails entirely to show any fraud in procuring that judgment. On the contrary, it shows affirmatively that it was obtained by regular course of judicial procedure.

The objection to the execution is predicated upon the assumption that the judgment was not rendered by the court, and is disposed of by what has already been said on that subject.

We conclude that the undisputed evidence established a perfect defense to this action, and that the learned circuit judge properly directed a verdict to be returned for the defendant.

By the Court. — Judgment affirmed.