Swihart v. Harless

"WiNslow, J. The complaint charges, in substance, that the defendants Harless and Grindle held school-land certificates belonging to the plaintiff as security for a loan, and [216] that they refused to accept payment of said loan when tendered, but fraudulently procured patents to be issued to themselves, and then sold the property to the defendants Manier and Ritter, and granted a right of cutting timber thereon to the defendant Smith, under which timber has already been cut, and that all of said last-named defendants-had knowledge of the plaintiff’s right and interest in the land when they purchased. That these facts present a proper case for the exercise of equitable jurisdiction, there can be no doubt, since the decision of the case of Burrows v. Rutledge, 76 Wis. 22, The plaintiff has no paper title to the lands in question. According to the allegations of the complaint, the defendants have fraudulently procured the-paper title and taken possession of the land. Fraud is the-foundation of the action, and the principal relief sought is-the setting aside of the results of, the fraud, and compelling the defendants to convey the title so fraudulently acquired to its proper owner. As incidental to this relief it is proper also to include in the action a claim for damages for the timber cut upon the property; nor does such a claim make-the complaint multifarious. The grounds of action are necessarily connected together. They “ arise out of one and the same transaction, or a series of transactions forming one course of dealing and all tending to one end,” namely, fraudulently depriving the plaintiff of Ms land and timber. It is not necessary that all the defendants should be equally interested, if they are all more or less concerned in the same general subject of the litigation. Douglas Co. v. Walbridge, 38 Wis. 179. The claim for damages for the cutting of timber by the defendants is a claim necessarily connected with, and growing out of, the fraudulent procurement of the title; and, the jurisdiction of equity being properly invoked to reveal and correct the fraudulent state of the title, such damages may be properly awarded to the plaintiff, as incidental to the main relief sought. Story, Eq. Jur. (12th ed.), § 796. [217] The wives of the defendants who participated in the fraud and are now asserting ownership or substantial rights in the real estate in question are proper parties defendant, though perhaps not necessary parties. By the Court.— Order affirmed. Maeshall, J., took no part. '