Perkins v. Perkins , 173 Wis. 421 ( 1921 )

The following opinion was filed December 14, 1920:

Rosenberry, J.

The pivotal question in this case is whether or not the defendant was divested of his title under and by virtue of the tax deed by the possession of the plaintiffs.

All reasonable presumptions are to be made in favor of the true owners,- including, the presumption that actual possession is subordinate to the right of the true owner, subject, however, to the limitation that actual, continuous, exclusive possession for the statutory period, unexplained, displaces a presumption in favor of the true owner and creates a presumption of fact that such possession, and the commencement of it, were characterized by all the requisites to title by adverse possession. Meyer v. Hope, 101 Wis. 123, 77 N. W. 720; Illinois S. Co. v. Budzisz, 106 Wis. 499, 514, 82 N. W. 534.

The possession of the defendant in this case, however, is not unexplained. It is fully and completely explained. The acts óf the defendant, as well as of his deceased wife, fully characterize his possession at the time of entry. The trial court found that they went upon the premises in November, 1894. At that time the defendant had no title to nor interest ip the land. ITe was the owner of a tax certificate issued upon the sale of 1894 for taxes of 1893, but made no claim to title under such certificate at that time nor subsequently. His entry, therefore, was clearly permissive. His wife was the owner of a dower interest, the minor children who accompanied him were part owners of the premises. Under such circumstances the entry of the defendant was permissive and not hostile or adverse. Ayers v. Reidel, 84 Wis. 276, 54 N. W. 588; Allen v. Allen, 58 Wis. 202, 16 N. W. 610; Bannon v. Brandon, 34 Pa. St. 263; Johnson v. Oldham, 126 Ala. 309, 28 South. 487; De Witt v. Shea, 203 Ill. 393, 67 N. E. 761.

The evidence is undisputed that the defendant never did anything to assert title under'his tax deed, or made any claim adverse to plaintiffs, until at or about the time of his wife’s death; that none of the plaintiffs knew that he had or claimed to have any interest in or to the premises, and it is a. fair inference- from the- evidence that they supposed that- he occupied the same under such title or right as his wife, their mother, had. If it be said that the recording of the tax deecl by the defendant operated as notice to the ■plaintiffs-or any of them, it is sufficient to say -that-by.the terms of the statute the recording of a deed is-notice, not to prior owners, but to those who subsequently .deal with the ■title. ■ It is sometimes.said that such recording is constructive notice to all the world. This statement is too broad. Registry of a deed is notice- only to those who -claim through or under the grantor or subsequently deal with -the title to the premises. Ely v. Wilcox, 20 Wis. 523; 39 Cycr 1721, and cases cited.-

While the record of the tax deed was notice to all persons dealing with the title to the premises subsequent thereto, it was not notice to the plaintiffs or any of them. The defendant testified:

“I am not able to say that they [the plaintiffs] knew 1 was in possession, but can say this much: they came and went as they were a mind to there. ... I suppose they came to visit their mother.”

The defendant said no word, performed no act, made no claim, and asserted no right that tended to arouse in the minds of the plaintiffs any question as to the character of his possession or to indicate to them that he claimed under any different or other right than that under which he went into possession, and that was the right of his wife and children.

The entry of the defendant being permissive in character and his possession not being adverse, neither the twenty nor ten-year statute of limitations began to run until knowledge of his adverse claim was in some way brought home to the true .owner. Allen v. Allen, 58 Wis. 202, 16 N. W. 610.

The acts of the defendant in procuring the land to be assessed to him, the payment of taxes thereon, the possession and improvements made thereon by him, unexplained, might well afford a basis for a finding that his possession was adverse. His acts during the time that his possession was permissive were of the same character and extent as they were after the execution and recording of the tax deed. Until the defendant brought home to the plaintiffs that he was acting under a different right than that under which he entered, his possession remained permissive and his right subordinate to the true owners.

The trial court found that from the date of the tax deed the possession of the defendant was adverse to plaintiffs. We find no evidence in the record upon which such finding-can be based except that relating to the recording of the tax deed, and that, as we have shown, was ineffective unless knowledge thereof was actually brought home to the plaintiffs. Where a father procured a patent to lands to be issued in the name of his son, then a minor, and went into possession of the lands and recognized the son’s title for some years after he took possession of the. lands, this court said:

“After such entry and recognition of the son’s title, the possession of the father would not become adverse until he did some act disavowing the right of the son; and asserting title in himself in hostility to the son’s title, and such disavowal of the son’s title, and his claim to hold in hostility to the title under which he took possession, must be brought to the knowledge of the son before the statute could be set to running under such subsequent possession.” Allen v. Allen, 58 Wis. 202, 16 N. W. 610. See, also, Bartlett v. Secor, 56 Wis. 520, 14 N. W. 714; Quinn v. Ouinn, 27 Wis. 168.

The obligation of the defendant to bring home to the plaintiffs knowledge of the fact that he made a claim to the premises adverse and hostile to their interest was greater by reason of the fact that they, or some of them at least, were members of his family, under his care and protection.

Under the facts and circumstances of this case, the ordinary rule that a hostile claim may be inferred from acts of dominion over property such as were exercised by the defendant over the premises in question and that such acts of dominion are presumed to be in hostility to the true owner, has no application. The facts being fully explained, the nature of his entry being clearly established, no room is left for the operation of presumptions. In his amended answer the defendant makes no claim of adverse holding prior to the 11th day of December, 1897; the date of the tax deed, and if such claim were made we find no evidence in the record to support it.

The defendant claims title by virtue of his tax deed under the provisions of sec. 1187, Stats., which provides that no action shall be maintained by the grantee in a tax deed unless such grantee, or those claiming under him, shall be in actual, not constructive, possession of the land so demanded for three successive years during the five years next after the recording of such deed. This statute operates in favor of the possessor to bar the title to whichever party — the original owner or tax-title claimant — was, during the three years next after the recording of the tax deed, out of actual .possession and thus compelled to resort to legal proceedings to obtain such possession. Falkner v. Dorman, 7 Wis. 388; Swain v. Comstock, 18 Wis. 463; Laffitte v. Superior, 142 Wis. 73, 125 N. W. 105.

The trial court held that as to the plaintiff Nellie Brougham the tax deed was voidable, but held it valid as to the other plaintiffs. The only difference in the situation of the plaintiffs was that the plaintiff Nellie Brougham remained upon the premises in question, from the time she went there with her mother and stepfather in 1894, for many years. If her occupation was such as to set the statute running in her favor and against the defendant, then the statute must run in favor of the other plaintiffs against the defendant, because her possession, being the possession of a coténant, was for the benefit of all the cotenants and was in law their possession. 38 Cyc. 21.

■. It is to be noted that under the provisions of sec. 1187, Stats., the' possession of the tax-title claimant is required to be not constructive but actual. Sec. 1190 provides that possession, within the meaning of sec. 1187; shall be governed by thé rules prescribed' for determining an adverse possession by a person claiming title founded Upon a written instrument.- The possession'of the defendant' as ’ to the plaintiffs being permissive' ánd in subordination to their ■ title',.it was, as we-have held, not adverse. The possession of the parties in this case, including that of defendant, therefore, was the possession of the plaintiffs, • and operated to bar-.the .defendant , of- any fights under .his fax deed, he having not begun any action within the time prescribed by statute.

The defendant did not hold adversely by color of title, asserted in good faith, and therefore is not entitled to recover for improvements under the provisions of secs.: 3096, 3097.

Defendant contends that plaintiffs are estopped to assert their title at this late day. It is argued that it was the duty of plaintiffs to speak, and that because they remained silent over a long period of years, during which time the defendant placed valuable improvements upon the premises, they ought not to be allowed to assert their title as against the defendant. One of the necessary elements of estoppel by silence or implied misrepresentation is that the opposite party must be misled by the conduct complained of. The defendant was not misled by the conduct of plaintiffs or any of them. He knew exactly what their title was and the entire situation. ■ . He did nothing in reliance upon their conduct. The principal elements of estoppel are wanting. Priewe v. Wis. S. L. &. I. Co. 103 Wis. 537 (79 N. W. 780), at p. 552. . .

If the result reached in this case seems to be harsh as to the defendant, we can only say it is due to a situation created by the acts of the defendant himself. His long-continued silence with reference to his rights under the tax deed created a situation which has operated to deprive him of benefits to which he might otherwise have been entitled. On the other hand, it would be most unconscionable to permit a person occupying a quasi-parental relationship to a family of children to acquire title.to premises owned by them and their mother, his wife, under the circumstances shown by the evidence in this case. The jury found that-the defendant did not hold possession of the premises in good faith. If his possession had been adverse it might have ripened into a good title, whether-he acted in good faith or not. But having entered the premises in subordination to the title 'of the plaintiffs, the law, as well as fair dealing, required him to acquaint his wards with any change in the-situation which might operate to divest them of their title to the property inherited from their father and vest it in him. This the defendant failed to do. The plaintiffs are entitled to judgment as prayed in the complaint, establishing their title to the premises, ousting the defendant, and for mesne profits as found by the jury, less the amount of taxes and interest paid by the defendant during the six-year period.

By the Court. — Judgment reversed, with directions to the lower court to enter judgment for the plaintiffs in accordance with this opinion.

A motion by the respondent for a rehearing was denied, with $25 costs, on March 8, 1921, and the following opinion was filed March 14, 1921:

Rosenberry, J.

The respondent moves for. a rehearing, claiming that he is entitled to recover taxes paid by him upon the premises in question under the provisions of sec. 3087, Stats. Upon this motion we have re-examined the question and are of the opinion that the defendant is not entitled to offset taxes for any part of the period in question. The plaintiffs did not recover by reason of any defect or insufficiency in the tax deed. The deed was fair upon its face and the tax proceedings, so far as the record discloses, were regular. The defendant is defeated by virtue of the provisions of sec. 1187, Stats., which operated in this case to bar him of any right to the premises in question, and not by reason of any defect in his tax deed or in the tax proceedings. The jury, in answer to the fourth question, having found that the defendant did not hold possession of the premises in good faith, the court is of the opinion that the extent of his offset must be limited to his legal rights. The original opinion is therefore modified to read as follows:

The plaintiffs are entitled to judgment as prayed in the complaint establishing their title to the premises, ousting the defendant and for mesne profits as found by the jury.

The mandate is amended to read as follows:

Judgment reversed, with directions to the lower court to enter judgment for the plaintiffs in accordance with the opinion as modified.