Lockwood v. Reese ( 1890 )

Tayloe, J.

Upon this appeal, according to the well-established rule of this court, the order will be sustained, if the complaint states a good cause of action against the defendant, whether the demurrer be frivolous or not. The real ground of demurrer is that the complaint does not state a cause of action in favor of the plaintiff against the defendant. After a careful consideration of the facts alleged in the complaint, we are forced to the conclusion that no cause of action is shown in favor of the plaintiff against the defendant. The learned counsel for the appellant contends that if it be admitted that there are facts enough stated to show that the defendant, Iieese, bid off said mortgaged property in trust for the mortgagees, Lockwood and Gates, still the plaintiff does not show by her complaint that there has been such a devolution of the right of Lockwood to the plaintiff by the mere fact that he died intestate, possessed of the right to the trust estate, as would entitle her to maintain this action. To succeed to the right of her husband at his death, it is said the widow must either show that she is his sole heir, or, if she sues in her representative capacity, she must show that the real estate she seeks to recover as administratrix is necessary for the discharge of the debts of the deceased; and as neither of these facts is alleged in the complaint, the plaintiff has failed to state a cause of action, either in her representative capacity or in her capacity as widow of the deceased. If she seeks to recover in this action as inheriting the right of the deceased, it is clear that she fails to make out a case, unless she alleges in her complaint that she is the sole heir.

"Whether the facts stated would entitle her to recover in her representative character, if the allegations in her complaint showed that the defendant held the real estate in question in trust for her deceased husband, we need not decide in this action, for the reason that the facts stated fail to show any such holding in trust for Lockwood and Gates, or for either of them. The facts stated show with sufficient clearness that the title to the mortgage in question was transferred to the receiver, Strong, by virtue of his appointment as such receiver in the action set out in the complaint. The facts stated show that the foreclosure action was carried on in the name of the receiver, and upon the facts stated as to the bidding in of the property by Reese they show that in law the property was bid in for the benefit of the plaintiff in that action, viz., the receiver, and if Reese holds the property in trust for any one, he holds it in trust for the receiver, the plaintiff in that action, and must account to him for it, and not to the plaintiff. The allegation in the complaint that Reese bid in the property in trust for Lockwood and Gates is a conclusion of law not warranted by the facts stated. It seems very clear to us that the plaintiff should have sought her rights in the action in which the receiver was appointed. There is nothing appearing in this case which tends to show that she could not have secured her rights in that action, but if there were any reasons shown why her rights could not be secured by an application to that court to have the receiver account for the money collected on the mortgage, or for the property obtained by such foreclosure, then, upon a proper application to that court, it is quite certain such court would permit the plaintiff to commence such action against the receiver and other persons as might be necessary to secure her rights. Noonan v. McNab, 30 Wis. 277; In re Day, 34 Wis. 638; Milwaukee & St. P. R. Co. v. M. M. R. Co. 20 Wis. 165; 2 Wait’s Pr. 199, and cases cited. In the absence of any reasons shown for not proceeding against the receiver, or any allegations showing that a proceeding against the receiver would not be an adequate remedy, it is clear to us this action cannot be maintained.

By the Court.— The order of the circuit court striking out the demurrer is reversed, and the cause is remanded for further proceedings according to law.