Begole v. Hazzard

Cassoday, J. 1. At the time of taking the tax deeds, August 28, 1878, under which the defendants claim the lands in question, the original and legal title to the same was in the plaintiff’s grandfather, by virtue of the deed to him from the plaintiff’s father, executed March 26,1877, as mentioned in the foregoing statement. It is claimed, however, that the equitable right and title to the lands were then in the plaintiff, by virtue of a parol understanding and agreement bad and made by the plaintiff’s father and grandfather at the time of executing and delivering the deed mentioned, to the effect that the grandfather should take the deed and [277] dispose of the lands for the benefit of Frank 0. Begole’s children and the survivor of them, and that the plaintiff was such survivor. Such parol understanding and agreement the plaintiff was permitted to prove by his grandfather, against the objection of the defendants. . The ground of such objection is that such parol testimony was not admissible by reason of sec. 4069, R.'S. That section precludes “ a person from, through, or under whom a party derives his interest or title ” from testifying “ in respect to any transaction or communication by him personally with a deceased person, ... in any civil action or proceeding in which the opposite party derives his title or sustains his liability to the cause of action from, through, or under such deceased person.” It is true that the plaintiff derived whatever equitable right, title, or interest he may have had in the lands from and under his deceased father and through the witness; but it is equally true that the defendants, as the opposite parties, do not derive their title or sustain their liability “ to the cause of action from, through, or under such deceased person.” The defendants claim title by, virtue of a tax deed adversely to the original owner, and hence the testimony in question does not come within the prohi-. bition of the section. 2. It is true that sec. 2802, R. S., provides that “ no estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning* lands, or in any manner relating thereto, shall be created, granted, assigned, surrendered, or declared unless by act or operation of law, or by deed or conveyance in writing, subscribed,” etc.; but that did not make such parol trust absolutely void, but, at most, voidable at the election of the grandfather. Karr v. Washburn, 56 Wis. 303; Main v. Bosworth, 77 Wis. 664; Randall v. Constans, 33 Minn. 334. Such voidable and executed parol trust has frequently been sustained as against the creditors of the trustee. Hyde [278] v. Chapman, 33 Wis. 391; First Nat. Bank v. Bertschy, 52 Wis. 439; Bancroft v. Curtis, 108 Mass. 47; Schreyer v. Scott, 134 U. S. 405. Thus it appears that the plaintiff had an equitable interest in and right to the lands in question from the death of his father down to the time of the recording of the tax deeds, subject to be defeated only by a breach of such trust i on the part of his grandfather. 3. Such equitable title of the plaintiff to the lands gave him the legal right to redeem the same from said tax sale at any time during his minority and one year thereafter. Sec. 1166, R. S. This has been repeatedly held by this court. Jones v. Collins, 16 Wis. 595; Karr v. Washburn, 56 Wis. 303; Tucker v. Whittlesey, 74 Wis. 82. The statutes authorizing the original owner to redeem from tax sales are to be liberally construed. Lander v. Bromley, 79 Wis. 378; Barrett v. Holmes, 102 U. S. 657. It follows- that the redemption from the tax sale by the plaintiff after he had acquired the legal title to the lands by deed from his grandfather was effectual and extinguished any and all right of the defendants to the same. By the Court.— The judgment of the circuit court is affirmed.