Allen v. Ellis

Siebeckee, J. The plaintiff brings this action, demanding that the title acquired by him to the lands in question be confirmed, that he be declared the owner in fee, and that it be decreed that the defendants have no interest in the lands, and that they be barred from exercising the rights of ownership and possession which they assert and seek to maintain. The facts alleged by the plaintiff are sufficient to constitute a cause of action in the nature of a suit in equity to remove the cloud upon the title which he claims to own, and which, if found valid, makes him the owner in fee of the lands and gives him the right to the possession thereof. As stated in Pier v. Fond du Lac, 38 Wis. 470: “The remedies given in such action are broad and ample. To give effectual relief the court will decree the reformation, surrender, or cancellation of deeds and other instruments affecting the title, or the reformation or cancellation of records and the execution of deeds and releases. In short, it possesses power to decree adequate relief and to enforce full execution of its judgment.” - - Other cases holding that such a bill may be maintained are collected in Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974. B. K. Boyd, as purchaser at an execution sale in April, 1901, under a judgment against H. C. Ellis, secured a sheriff’s deed of the premises in July, 1902. A quitclaim deed of the interest thereby acquired was made by B. K. Boyd and wife to this plaintiff on August 17, 1903. On the trial of the issues the court found that plaintiff had acquired no title or — 571 — interest in tbe lands under this conveyance from E. K. Boyd. Tbe conclusion of tbe court is based on tbe ground that, tbougb H. 0. Ellis paid tbe consideration for tbe lands wben they were purchased from Moore, tbe title thereto was taken in tbe name of J. F. Filis, bis son, and was so held from the-date of purchase to tbe commencement of this action. Exception is urged to this conclusion of the court on tbe ground that- tbe finding is against the clear preponderance of tbe evidence, and upon tbe further ground that the plaintiff stands in privity with the judgment creditor in tbe action wherein tbe sheriff’s deed issued on execution sale, and that tbe same question was litigated between such judgment creditor and tbe defendants in a garnishment action Wherein tbe property was sought to be reached in satisfaction of tbe original judgment which plaintiff had purchased, and therefore such finding is res adjudicaba, in this action between plaintiff and tbe defendant J. F. Filis. It appears that plaintiff is tbe purchaser of' tbe judgment in tbe case of Whereatt v. IT. 0. Ellis et al., and that Whereatt commenced an action against the Southwestern Land Company and J. F. Filis as garnishee defendants for tbe purpose of reaching any property in tbe bands’ of’ tbe garnishees and of applying it in satisfaction of tbe judgment in tbe original action of which tbe plaintiff is tbe as-signee. Tbe present plaintiff was not a party to, nor did be-appear in or have any control over, the proceedings in tbe garnishment action. Tbe garnishment action went to judgment upon trial, and tbe court held that J. F. Filis was not liable as garnishee, and dismissed tbe action as against him. Tbe court found as a fact in tbe garnishment action that tbe title to tbe land involved in tbe present suit was conveyed to-J. F. Filis under an agreement between him and bis father,. H. 0. Ellis, “that, upon payment by tbe latter of the sum which F. F. Filis bad paid for tbe land, tbe said lands should thep upon demand be conveyed by the said J. F. Filis to tbe said H. C. Ellis.” It is claimed that tbe determination of — 572 — tbis question in tbe garnishment action is binding upon tbe parties to tbe present action, because tbe present plaintiff, Edward W. Allen, was tbe assignee of tbe original judgment, for tbe satisfaction of which tbe garnishment action was pros--eeuted by tbe plaintiff therein. There ig nothing to show that tbe plaintiff was beneficially interested in tbe prosecution of tbe garnishment'action. So far as it appears, that proceeding was wholly in tbe interest of and for tbe benefit of tbe original judgment creditor. Tbis situation leaves tbe plaintiff in tbis case a stranger to tbe garnishment action. But it is claimed that, since be obtained that judgment by purchase from Whereatt, who was plaintiff in both tbe original and tbe garnishment actions, be is bound by such finding in tbe garnishment action as a privy. Tbis claim we do not •consider well founded. To constitute privity as here asserted it must appear that there was a mutual or successive relation-■sbip to tbe right of property affected by tbe judgment which was assigned to tbis plaintiff. “It is only when tbe particular property or right which has been transferred has been affirmatively shown to have been tbe subject matter of tbe former litigation, and its status ■settled thereby, that tbe effect of tbe litigation is conclusive upon a grantee or transferee of tbe property.” Grunert v. Spalding, 104 Wis. 193, 225, 80 N. W. 589, 590. “In the doctrine of res adjudícala, privity extends no farther than tbe particular subject matter or property, tbe status •of which was determined by tbe judgment as to that particular thing. . . . Tbe mere personal effect of tbe judgment, however, is absolutely confined to tbe parties to tbe litigation. It does not attach to and become a rule of property as to any ■other thing than tbe particular subject of tbe controversy, which was closed by the judgment.” Hart v. Moulton, 104 Wis. 349, 354, 80 N. W. 599, 600. Tbe plaintiff in tbe instant case, as assignee of tbe judgment in tbe original action, became successively related to tbe rights of property which were determined by tbe judgment •so assigned to him. Tbe questions involved and litigated in — 573 — the garnishment action are independent of, and are not included in and covered by, the judgment in the original action. The matters concluded therein ara'confined to the parties to that litigation, and the mere personal effect of such judgment, which estops the parties as to the matters embraced therein, does not pass with the transfer of the original judgment, though the party plaintiff was- identical in both' actions. Since the parties are not the same, and since the decision in the garnishment action would nat.be conclusive against this plaintiff, it follows that it is not conclusive in his favor, and the doctrine of res adjudícala does not apply. Grunert v. Spalding, supra; Hart v. Moulton, supra; Hunt v. Haven, 52 N. H. 162; McDonald v. Gregory, 41 Iowa, 513; Burlen v. Shannon, 3 Gray, 387; 1 Herman, Estoppel and Res Adjudicata, § 135; Shipman v. Rollins, 98 N. Y. 311; Lenz v. C. & N. W. R. Co. Ill Wis. 198, 86 N. W. 607. Appellant directs our attention to the testimony bearing on the finding of fact that the relationship of mortgagor and mortgagee did not exist between the defendant J. F. Ellis and his father as to the lands in controversy, and asserts that there is such a conflict in the evidence of J. F. Ellis in his action and his evidence in other actions on this question as to make his evidence in this case incredible. An examination of the evidence does not warrant such an inference. True, there are some discrepancies in his evidence given upon the various examinations in the different actions'. They are, however, of slight importance, and were explained by the witness as mistakes in recollection, resulting from the lapse of time and the complications arising out of the different transactions involved in the litigation. The tidal court would not have been justified in disregarding his evidence in the case. Taking it into consideration with the other evidence in the case, the court had good ground to conclude that the relationship of' mortgagor and mortgagee did not exist, and its finding on this subject cannot be disturbed. — 574 — Appellant also claims that the respondent J. F. Filis conveyed .whatever interest he had in the lands in controversy to the Southwestern Land Company by the contract of September 1, 1893, and that this land company conveyed such interest to him by the quitclaim deed of August 17, 1903. The court found that the parties to that contract did not in fact intend to include the lands in question in this contract, and that they were not conveyed under it. There is hardly room for argument upon this question, in the light of the undisputed facts that the land was held, occupied, and used by IT. C. Ellis throughout the ten years after the making of the contract and the commencement of this action without a claim of ownership by the land company; that no transfer by deed was made or called for under this contract, and the fact, admitted by Charles L. Allen, who was the sale manager and active agent of the land company, and who acted for it in the negotiations resulting in this contract, that he did not consider this land to be the property of J. F. Filis when the contract was made. The facts established by the evidence abundantly support the conclusion of the court on this question. It is contended that, if it be held that the title to this land is in J. F. Ellis as grantee in fee under the deed from Moore, then H. C. Ellis, his father, has acquired such title by adverse possession of the land. The father’s uninterrupted possession and use of the lands for the period of twenty-seven years is admitted. The evidence also shows that he went into possession with the consent of his son and under an agreement to occupy and cultivate the farm for his own benefit, and with the further agreement that the title should be in the son. This possession and use continued under this arrangement up to the time of his death. Nothing indicates that there was any change in the character of the father’s possession. The facts necessary to show a hostile possession do not appear. In so far as the proof characterizes the possession, it is to the effect that the father held and occupied the land under the — 575 — legal proprietor, and that he never claimed or asserted occupancy or possession other than in subordination and subservience to the legal title. Ho grounds are established upon which •a claim of adverse possession by the -father can be based. Eespondent presented arguments upon a number of questions not covered by the court’s findings and judgment. It •does'not appear that they were considered upon the trial; there were no requests presented to the lower court to find on them, nor are they covered by any exceptions preserved in the record. Under these circumstances we do not feel called upon to consider these questions on this appeal. By the Gourt. — The judgment is affirmed.