Allie v. Schmitz

By ike Court, DixoN, C. J. The judgment below must be affirmed, for the reason stated by the learned judge in his instructions to the jury, that Joseph Allie, the plaintiff’s husband, was not joined in the action. The plaintiff saw fit to rest her title upon the evidence afforded by the decree of partition, and according to that it was vested jointly in herself and her husband. It was expressly adjudged by the decree that she and her husband were “ seized of and entitled to the one equal undivided third part of the premises,” for which this suit is brought, and the commissioners were directed to allot the same to them. It is not easy to avoid the conclusiveness of this language when exhibited as the foundation of title. [173] The counsel for the defendant object that it was not competent to show title by the decree, for the reason that it was not final; but we cannot agree with them. We are of opinion that, until modified or set aside in some direct proceeding, the decree is final and conclusive as to the nature and extent of the rights of the respective parties to it. It was the decree, and the only one, provided by statute, by which their rights were to be determined, the partition being a subsequent proceeding given for the purpose of carrying such decree into effect. R S., 1849, ch. 108, secs. 19, 20, 21, 22, 23. If the parties chose to stop with a decree ascertaining their rights, and not to proceed to partition in fact, it is not perceived why their neglect to take the latter, should render the former step ineffectual. This disposes of the exception to the exclusion of the bill of complaint and jurat, when offered by the plaintiff separately from the decree; the latter being, from its nature, higher and more conclusive evidence of title than any afforded by the admissions of the bill. The defendant was, therefore, entitled to have the whole record offered. If it be objected that the decree does not follow the allegations of the bill, the answer is that that is a matter which cannot be collaterally investigated. The defendant, who was the complainant in that action, may have been mistaken with regard to the title of the plaintiff, or the court may have been in error in the judgment pronounced, but neither is a matter which affects the conclusiveness of the decree. Tallman v. McCarty, 11 Wis., 401; Falkner v. Guild, 10 id., 563. In actions for the recovery of real property, the complaint must particularly state the nature and extent of the estate or interest of the plaintiff in the premises. R. S., ch. 141, sec. 4. Specific directions are given as to the rendition of the verdict. Sec. 14, subds. 4, 5, 6, 7. This statute received a construction in New York before its adoption here. It was held that upon a claim of an undivided share of the. premises, the [174] plaintiff could not recover an undivided interest greater or less than the share claimed; nor could be recover the whole. Neither could he, upon a claim of the whole, have judgment for an undivided part of the premises. Holmes v. Seely, 17 Wend., 75; Gillett v. Stanley, 1 Hill, 121; Cole v. Irvine, 6 Hill, 634. The alleged cause of action was not, therefore, made out, and the proof offered was such that it appears there could be no recovery by the plaintiff alone. Ketchum v. Walsworth, 5 Wis., 95. Judgment affirmed.