Shaffer v. Whelpley , 37 Wis. 334 ( 1875 )

Cole, J.

This is an action to set aside and cancel certain conveyances which, it is alleged, constitute a cloud upon the' title of the plaintiff. The complaint is very voluminous, containing a great deal of wholly immaterial matter. But still it is fatally defective. There is no allegation in the complaint that the plaintiff is in the possession of the real estate in question. Such an averment is absolutely essential in a complaint of this character. Wals v. Grosvenor, 31 Wis., 682. The statute only authorizes the action by one in the actual, visible possession of the premises. And where the complaint stated that the plaintiff was the owner in fee simple, and in possession, this court held, in the above cause, that it would presume the possession to be of that character which the statute makes essential to the maintenance of the action. Here it is alleged that the plaintiff is the owner in fee simple of the premises. It is also alleged that her grantor, James Whalen, when he executed the conveyance, dated August 27,1872, under which she claims, was seized and in the possession of them. And it is argued that we must presume that the plaintiff was clothed with his possession. We cannot so presume. The plaintiff may be the owner and have the right to the possession of the premises, but still not be in the possession of them. So material a fact as possession should not be left to inference merely, but should be clearly stated.

It follows from these views that the order of the circuit court sustaining the demurrer to the complaint, must be affirmed.

By the Court, — Order affirmed.