Boon v. Root

SiebeckeR., J. The complaint alleges facts which plaintiffs claim constitute a cause of action against the defendants for fraud, accomplished by collusion with Delos Curtis, who was in possession of the premises as life tenant, and his wife, Loretta D. Curtis, residing with him, it being their purpose to secure a tax title to the premises in order to secure the title to this property and to deprive these plaintiffs of the in [455] terest they bad in the land under the deed from their aunt. It is alleged that Delos Curtis was granted a life estate by such deed and that he was in actual possession of the premises, as such life tenant, when the premises were sold for unpaid taxes and a certificate of sale issued to the defendant William H. Boot, and when Loretta D. Curtis, wife of the life tenant, obtained the tax deed on such tax sale. It is also alleged that all of these parties wrongfully colluded together to secure this tax deed, fraudulently intending to obtain a tax title to the premises and thereby deprive plaintiffs of their interest in them. ■ ,J- It is urged that the facts alleged respecting these transactions are not sufficient to constitute fraud. In determining this question the allegations that Delos Curtis was the life tenant, in possession, at the time the tax title was obtained by his wife, and that she made it her home with him, are significant as establishing a fiduciary relation between the plaintiffs and the life tenant. Under these allegations, which must be taken as true on demurrer, it was clearly the duty of the life tenant, for the benefit of the plaintiffs, to pay the tax charges upon the property during his tenancy. Phelan v. Boylan, 25 Wis. 679; Hart v. Hart, 117 Wis. 639, 653, 94 N. W. 890. His failure to comply with this obligation, and the allegation that he omitted so to do pursuant to a collusive arrangement between him, his wife, and her children for the purpose of obtaining the title to the land and depriving plaintiffs of their interest in it, states sufficient to charge a fraud. The claim that the fact that the tax deed was secured by the wife of the life tenant in possession operates to purge the alleged transaction of fraud is without merit. Under the allegation showing that she was the wife of the life tenant and occupied the premises with him as their home she would be required, under the allegations of the complaint, to explain the transaction of securing the tax title and to establish that it was taken by her in good faith. It is claimed that the complaint does not allege that there [456] was a delivery of tbe deed from Lavina C. Curtis to Delos Curtis and the plaintiffs. Tbe allegations are tbat tbe grantor made, executed, and delivered a conveyance of tbe premises to tbe parties named as grantees therein, tbat it was duly recorded, and tbat Delos Curtis held possession of tbe premises under it as life tenant. These facts, if proven, are sufficient to show execution and delivery of tbe instrument. It is contended that plaintiffs have mistaken their remedy in bringing this action in equity, and that an action in ejectment would furnish them a complete and adequate remedy for tbe enforcement and protection of their rights. As above indicated, tbe complaint charges tbat tbe defendants fraudulently conspired with tbe life tenant and their mother to deprive plaintiffs of their interest in the premises, and tbat tbe defendants claim to own tbe property under a tax title procured by such fraud. It is clear tbat, in an ejectment action against tbe defendant in possession, tbe instruments and mu-niments of title flowing from tbe tax-sale proceeding could not be reached and would be left uncanceled, and tbat to secure relief against injurious acts affecting plaintiffs’ interest in tbe land such fraudulent and hostile record titles could •only be impeached by proof of transactions aliunde tbe record. Under such circumstances a suit in equity may be maintained to remove tbe clouds created by such fraudulent titles, and tbe court may in such suit decree tbe cancella-ition of such instruments and records and tbe execution of ■such conveyances as it may feel necessary to protect tbe plaintiffs’ rights in tbe premises. As stated in Swihart v. Harless, 93 Wis. 211, 67 N. W. 413: “Eraud is tbe foundation of tbe action, and tbe principal ■relief sought is tbe setting aside of tbe results of the fraud, and lawfully compelling removal of defendant’s claim of record against plaintiff’s title.” Pier v. Fond du Lac, 38 Wis. 470; Burrows v. Rutledge, 76 Wis. 22, 44 N. W. 847; Davenport v. Stephens, 95 Wis. 456, 70 N. W. 661. [457] It is urged that plaintiffs have no interest in the premises, •and hence have no right to prosecute .this action. The deed under which they claim from Lavina 0. Curtis conveyed the premises to Delos Curtis during his life, conditioned that he allow plaintiffs to live with him during his life, if they desired to remain on the premises, and that after his death the property should belong to the survivors. The effect of this ■conveyance was to grant the premises to Delos Curtis for life. After his demise they belonged to the plaintiffs. Since the life tenant is now deceased, dhe plaintiffs may take the property under the deed, and they are entitled to the possession of it. It is also averred that the action is barred by the statutes of limitation. It is obvious that the limitations prescribed by secs. 1188, 1189a, 1189&, Stats. (1898), have no application to the cause of action alleged in the complaint, since these sections have no application to an action to annul a tax title for fraud in the proceedings. Fox v. Zimmermann, 77 Wis. 414, 46 N. W. 533. As we have heretofore indicated, the foundation of the action is fraud, against which relief is sought by invoking the general powers of equity to compel a ■cancellation of the tax proceedings and the conveyances based thereon, or, to protect plaintiffs in their ownership of the property, the conveyance of the claims and interests secured thereby to them. The power to grant relief from the consequences of the fraud alleged is within the established jurisdiction of equity, has been exercised from an early day, and is embraced within the provisions of subd. 7, sec. 4222, Stats. (1898), under which the cause of action “is not •deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud.” Pier v. Fond du Lac, supra; Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974; Davenport v. Stephens, supra; McMahon v. McGraw, 26 Wis. 614; Fox v. Zimmermann, supra. It is alleged that the plaintiffs had no knowledge of any of the facts concerning the fraud charged until after the death of the life [458] tenant, which occurred in 1901. If this is established as a fact, then the action is not barred by limitation. The court properly overruled the demurrer. By the Gourt. — The order appealed from is affirmed.