Herren v. Strong

Ly®N, J. While the complaint contains averments which would bring this case within sec. 3186, R. S., this action is not brought under the provisions of that statute alone, but is founded upon the inherent power of a court of equity to prevent or remove a cloud upon the title to real estate; and the relief which may be granted. herein is not limited to that prescribed in the statute. Pier v. Fond du Lac, 38 Wis. 470; Goodell v. Blumer, 41 Wis. 436, and other cases there cited. The right of the plaintiffs to the relief demanded in their complaint necessarily depends upon the. existence of the conveyance of May 26, 1879, from Thomas and wife to Easley. Strike that deed from the plaintiffs claim of title, and it necessarily leaves the title in fee to an undivided half of the lots in question in the defendant. It is maintained by the defendant that because that deed is attested by but one witness, it was not entitled to be recorded in this state, and hence the record thereof is not evidence of the existence of the original deed. Such is the rule laid down in Smith v. Garden, 28 Wis. 685, and in many other cases in this court. But the rule has no application to this case, for [228] the reason that the parties stipulated that Thomas and wife “ made, executed, acknowledged, and delivered to the said D. T. Easley a quitclaim deed of all their right, title, interest, claim, or demand ” in and to the lots in question, and they annexed to and made a part of their stipulation a certified copy of the record of such deed. Beyond all question, under this stipulation the original deed was in evidence, and its exact terms were disclosed by the copy of the record. ' The defendant freely concedes that, as between the parties thereto, such deed was valid, notwithstanding its defective execution, and conveyed to Easley whatever interest Thomas had in the lots, but claims that he stands in a different and better position than Thomas. This claim, as we understand it, is that having recorded his deed from the sheriff, and having no actual notice of the deed from Thomas to Easley, which was not properly of record, he takes under the registry laws the. apparent interest of Thomas; that is, an undivided half of the lots. The answer to this is that when the sheriff’s deed was recorded (which was on the day this action was commenced), and before that time, the plaintiffs were in actual possession of the lots, claiming title thereto under the deed from Easley. This was constructive notice to the defendant of their title, one of the muniments of which was the deed from Thomas to Easley. Being chargeable with such notice, the defendant took nothing under the sheriff’s deed but the actual interest of Thomas in the lots. This brings us to consider Thomas’s relation to the title at the times mentioned. . The deed from Thomas and wife to Easley certainly conveyed to the latter alt the title and interest of the grantors in the lots. That interest was the equitable title to an undivided half thereof, with the right to the legal title on payment of the purchase money. Hence, when the purchase money was paid, the right to the legal title was in Easley, as well as the whole equitable title. [229] When the defendant conveyed the legal title to Easley and Thomas, the conclusion is inevitable that Thomas took the' legal-title to an undivided half of the lots as a mere trustee for Easley. He had no interest therein which he could enforce against Easley or the plaintiffs. It was argued by the defendant that because the deed, from Thomas to Easley is a mere quitclaim of the right, title, and interest of the grantor in the lots, the conveyance of the legal title to Thomas cannot, inure to the benefit of Easley; that Thomas only conveyed a present interest, and is not estopped by his quitclaim to assert against his grantee an after-acquired title. Such is undoubtedly the general rule of law, and it is sustained by numerous adjudications. Many of these are cited in the brief of the defendant, and they show that under such a deed a contingent interest in the land so conveyed does net pass to the grantee, but only vested interests therein. But the right of Thomas to the legal title is not a contingent interest in any correct sense of the term, but a present vested interest. It is clear that had the legal title remained in Thomas, the plaintiffs could, in equity, compel a conveyance thereof to them. And because the defendant has no better claim than Thomas, it necessarily follows that they have the same remedy against the defendant. The plaintiffs were entitled to a judgment that the defendant release to them whatever title he took under the sheriff’s deed, and the judgment should, perhaps, have been in that form. ' But the plaintiffs'are satisfied with it as it is, and the defendant is not injured by the judgment annulling the deed. It is the same to him whether his deed is canceled, or whether he be required to convey to the plaintiffs his interest in the lots by virtue of the deed. The judgment of the circuit court must be affirmed. By the Court.— Judgment affirmed.