Falck v. Marsh , 88 Wis. 680 ( 1894 )

WiNslow, J.

The sole question presented is whether, in ejectment, the grantee of a life tenant by quitclaim deed can counterclaim for the value of improvements made and taxes paid by him on the premises while holding under such deed, as against the owner of the fee. The circuit court ruled that he could not, and, we think, correctly so -ruled. The statute (R. S. sec. 3096) only allows such claims when made by a party in possession, who has made such expenditures (1) while holding adversely by color of title (2) asserted in good faith, (3) founded on descent or any written instrument. At least one of the above requisites is entirely lacking in the case at bar, and that is the element of adverse holding. It is well settled that a grantee in possession under a deed from the life tenant does not hold adversely to the remainder-man during the lifetime of the life tenant. If he hold under a warranty deed purporting to convey the whole estate, he may, under proper proof, be held to hold adversely after the death of the life tenant. Barrett v. Stradl, 73 Wis. 385. In the present case, however, the defendant does not hold under a warranty deed, or a deed purporting to convey the whole estate, but only under a quitclaim deed purporting to convey the interest of the life tenant. Such a deed manifestly cannot be made the basis of an adverse holding of the fee in remainder, because it does not purport to convey the remainder. McEvoy v. Loyd, 31 Wis. 142; Cowan v. Lindsay, 30 Wis. 586. The judgment of the court below was clearly right.

By the Court.— Judgment affirmed.