Goodell v. Blumer

Cole, J. It is objected by the learned counsel for the defendants below, that the complaint fails to state a canse of action under sec. 29, ch. 141, R. S. The action is not brought under that provision of the statute, but is founded upon the inherent power of a court of equity to prevent or remove a cloud upon the title to real estate. It is stated in the bom-plaint that the defendant Ooe, acting as sheriff, has levied upon the real estate described therein, by virtue of an execution in favor of his codefendant and against Samuel Stout and 0. Stout, and that he is proceeding to sell the property to satisfy the execution. The plaintiff claims that the judgment upon which the execution issued never became a lien on the property, and he seeks to enjoin the sale because the sheriff’s certificate or deed will be a cloud on his title. There can be no doubt that a court of equity will exert its jurisdiction and grant relief in such a case. And this it will do by virtue of its inherent powers as a court of equity. Pier v. The City of Fond du Lac, 38 Wis., 470; Hamilton v. The City of Fond du Lac, 25 id., 490; Siegel v. The Supervisors of Outagamie Co., 26 id., 70; The Milwaukee Iron Co. v. The Town of Hubbard, 29 id., 51. Whether or not the complaint would be sufficient under sec. 29, is therefore a question which does not arise in the case. We fully concur in the views of the learned circuit judge, that the judgment upon which the execution was issued never became a lien upon the property, for two sufficient reasons: (1.) Because Samuel Stout, had parted with all interest hi the property before the judgment was docketed in Vernon county; and (2.) Because, up to the time Samuel sold the property, [443] it was his homestead and exempt from sale on execution. It appears from the evidence that the plaintiff and one Henry Stout purchased the lot of Samuel Stout on the 15th day of December, 1870; paid the consideration, and went into the actual possession of the premises. The bona fieles of this transaction is in no way impeached, and this was nearly four months before the judgment was docketed in the county. It is true, when the sale was made, no writings were executed; but it was understood that Samuel Stout and wife, in whom was the legal title, should thereafter execute a conveyance. Subsequently, Henry Stout sold his interest in the premises to the plaintiff, and it was agreed by all concerned that the conveyance of the entire interest should be made directly to the plaintiff, which was in fact done by a deed executed and recorded on the 16th of May, 1871. Thus it will be seen that while the legal title remained in Samuel Stout up to that time, yet it is obvious he held it for the benefit of the plaintiff, who was the equitable owner. But on the other ground it is clear from the testimony that prior to and at the time Samuel Stout sold the lot in December, 1870, he owned and held it as and for a homestead. The evidence is conclusive upon that point. It is suggested by defendant’s counsel that he then abandoned the property as a homestead, and the judgment became a lien upon it. The case of Jarvais v. Moe, 38 Wis., 440, is relied on to sustain this position. But that case lays down no such doctrine. On the contrary, it distinctly recognizes the principle that one selling his homestead may well be presumed to do so, not for the purpose of abandoning, but for the purpose of changing his home. p. 447. Indeed the statute expressly provides that the owner of a homestead may sell and convey the same, and such sale and conveyance shall not render such homestead liable to a sale on execution. Sec. 30, ch. 134, Tay. Stats. But again it was said the sale made by Samuel Stout in December, 1870, was absolutely void because the wife did not join in it. [444] Probably a specific performance of tbe parol contract would not have been enforced against the wife. But she saw fit to carry out the contract, and joined in the conveyance which consummated it. In this way she gave full effect to the agreement, as much as though she had originally joined in the sale. Another objection was taken, that the deed executed by Samuel Stout and wife to the plaintiff was not proven on the trial. To this it is answered that there was no sufficient denial in the answer of the execution and delivery of the deed, to put the fact in issue. The complaint alleges the making of the deed; sets out the instrument in hceo verba, and states the volume and page of the record in the register’s office where the conveyance is x’ecorded. The answer traverses each allegation of the complaint not admitted, by averring “ that they have not sufficient knowledge or information to form a belief, and therefore deny the same.” It seems to us that when a party is pointed to the recora of a.n instrument in the pleadings, he is not permitted to answer that he has no knowledge or information sufficient to form a belief whether there is such an instrument or not. There is a public record which he can consult, and which it was intended he should resort to in order to inform himself upon the subject. Hathaway v. Baldwin, 17 Wis., 616; Mills v. The Town of Jefferson, 20 id., 50; Brown v. La Crosse City Gas Light and Coke Co., 21 id., 51; State on complaint of Kennedy v. McGarry, id., 496; The City of Milwaukee v. O’Sullivan, 25 id., 666. The principle of these decisions is, that a party cannot plead ignorance of a public record to which he has access, and which affords him all the means of information necessary to obtain positive knowledge of the fact. We therefore hold that the answer practically admitted the execution of the deed by Samuel Stout and wife to the plaintiff*, and that no proof of it was necessary under the pleadings. The only remaining objection necessary to be noticed is the one relating to the jurisdiction of the circuit judge to try and [445] determine the cause at the time and in the manner it was tried and determined. It is insisted on the part of the defendants, that the circuit judge had no power or authority thus to try the cause, and that consequently the judgment entered is erroneous if not void. This objection is not free from difficulty; but we are inclined to think, under the circumstances of this case, that it cannot prevail. By the record it appears that on consent of parties given in open court, an order was entered in the cause at the November term of the circuit court for La Crosse county, 1872, referring the cause to a referee to take the testimony and report the same to the circuit judge. The order further provided that the cause might be tried before the circuit judge at chambers at such time as counsel might agree upon, or on ten days’ written notice by either party after the evidence was all taken, and that judgment Toe entered as of that term. At this time the regular term of the circuit court for La Crosse county was a special term for the whole circuit for the transaction of any business from any county in the circuit, except the trial of issues of fact by a jury. Ch. 98, P. & L. Laws of 1866- By ch. 271, Laws of 1873, Yernon county was exempted from the provisions of this act. It appears from the finding of the circuit judge, that the counsel stipulated on the 22d of November, 1873, that the action be tried before the said judge at chambers on the 13th of January, 1874, at which last mentioned day the cause, by mutual agreement of counsel, was submitted to the judge upon the evidence and briefs without oral argument. The circuit judge filed his findings of fact and conclusions of law with the clerk of the circuit court of Yernon county, where the action was pending, on the 18th of May, 1874. Judgment in accordance with this finding was entered on the 16th of June thereafter. Now it is said that there was no term of court at this time, and that the judgment was in fact rendered by the clerk and not by the court. But it must be borne in mind that by the original order the parties agreed that the circuit judge might try the [446] cause at chambers, and that judgment should be entered on his decision as of the November term of La Crosse county, 1872. The subsequent stipulation fixed the time when the cause should be tried by the judge at chambers, but did not profess to do away with the provision in the order for entering judgment on the decision. <Df course, the stipulations must be construed together, and, when thus considered, they amount to an express agreement to try the cause before the circuit judge at his chambers, and that judgment should be entered on his findings. If the judgment had been entered nmic pro trnie as of the November term for La Crosse county, 18^2, the stipulations would have been literally complied with. If it was irregular to enter the judgment on the 16th of June, 1874, it was an irregularity favorable to the defendants, and certainly did not affect their substantial rights. It must therefore be disregarded. Sec. 40, ch. 125, R. S. Nor do we think there is anything in the decisions of Hills v. Passage, 21 Wis., 294, and Walworth County Bank v. Farmers’ Loan & Trust Company, 22 id., 231, which militates against the views above expressed. The reasoning in those cases would sustain a judgment in a case where the parties agreed that the judge at chambers should try the cause and that judgment should be entered on his decision. And we are not reluctant to give effect to such stipulations of parties as far as it can be done without a violation of legal principles. The objection, therefore, taken to the judgment on the ground that the cause was tried by the circuit judge at chambers, and that the judgment was entered upon his finding by the clerk, must be overruled. These remarks dispose of all the material questions in the case. By the Gowrt. — The judgment of the circuit court is affirmed.