Steinberg v. Salzman

Barnes, J. The finding of the circuit court that gross and glaring irregularities were committed in the administration of the estate of Carl Steinberg, which amounted to constructive if not to actual fraud, is a mild-mannered characterization of the acts by which the plaintiffs were deprived of what justly belonged to them, as the undisputed testimony in the case clearly shows. The evidence falls far short of showing that there was not an abundance of property, aside from the homestead, to pay Steinberg’s debts. Whether there was or not, it was a purely lawless proceeding to sell the homestead to pay them. No money was received by the administrator on-the sale, and none of the claims against the estate of the deceased were examined, proved, or allowed by the county court. Even the balance admitted by the defendant to be due after he settled the claims against the estate was never, paid, except. [123] as defendant claims lie paid it by caring for the minor children, for which care he was otherwise amply repaid, as-the evidence showed and as the court found. It is to be-hoped that county judges, administrators, and guardians, whose duty it is to guard and protect the estates of helpless-minors from predatory attacks, will not often be so unmindful of their duties and their obligations as they appear to-have been in this case. Notwithstanding what has been said, the plaintiffs cannot recover. See. 4211, Stats. (1898), provides that where an occupant enters into possession of any premises under claim of title exclusive of any other right, founding such claim on-some written instrument as being a conveyance of the premises in question, and there has been continual occupation and possession of the premises under such claim for ten years, the-premises so held shall be deemed to have been held adversely, and sec. 4215, Stats. (1898), provides that an adverse possession of ten years under secs. 4211 and 4212 shall constitute a bar to an action for the recovery of the real estate adversely held or the possession thereof. The statutes cited, in terms, make no exceptions in favor of minors or those under guardianship, or to meet cases of fraud, and they have been strictly construed in a long line of decisions in this court. Given a written instrument purporting to convey a colorable title, and adverse possession thereunder for a period of ten years, the requirements of the-statute are satisfied. Sec. 4218, Stats. (1898), does not aid the plaintiffs, as no action was commenced within the time-limited by that section. Hatch v. Lusignan, 117 Wis. 428, 94 N. W. 332, is a case presenting facts very like those in the-present ease. Other cases illustrative of the rule stated are Lampman v. Van Alstyne, 94 Wis. 417, 429, 69 N. W. 171 Nelson v. Jacobs, 99 Wis. 547, 75 N. W. 406; McCann v. Welch, 106 Wis. 142, 147, 81 N. W. 996; Ill. S. Co. v. Budzisz, post, p. 281, 119 N. W. 935, and numerous other [124] ■cases cited in the opinion in the last-named case. There can be no donbt that the administrator’s deed involved in this case ■conveyed color of title. Whittlesey v. Hoppenyan, 72 Wis. 140, 39 N. W. 355; McCann v. Welch, supra, and cases cited; Ill. S. Co. v. Budzisz, supra, and cases cited. It was admitted in the record in this case that the defendant August Salzman went into possession of the premises in 1879 under the deed from the administrator and that he has remained in possession ever since, claiming adversely to all the world. This action being one brought to set aside an administrator’s deed, it might well be governed by sec. 3918, Stats. (1898), which limits the time within which an action may be brought to recover real estate sold by an administrator to five years after the sale, and provides in the case of minors that the action may be brought within five years after they become of age. But the action was not brought within the time prescribed in this statute and the plaintiffs are barred thereunder. Betts v. Shotton, 27 Wis. 667, 669; Jones v. Billstein, 28 Wis. 221. The circuit court, while holding that the right of action to recover the real estate was not barred, also held that if plaintiffs were precluded from reclaiming the property they might still compel an accounting, and that such a right of action was saved by subd. 7, sec. 4222, Stats. (1898), the fraud not having been discovered until 1905. Treating the complaint as being broad enough to entitle the plaintiffs to an accounting, we still think that no right to an accounting ■exists. The effect of the statutes of limitation referred to is not only to preclude recovery of title by the plaintiffs, but .also to vest title in the defendants. Nelson v. Jacobs, supra; McCann v. Welch, supra. Title by adverse possession under the ten-year statute as well as the twenty-year statute may be .acquired although there is no element of good faith in the ■entry or in securing the deed under which entry is made [125] where the ten-year statute is invoked, provided the essentials-required by the statute are found to exist. Ill. S. Co. v. Budzisz, post, p. 281, 119 N. W. 935, and eases cited. This being so, it would be anomalous to call for an accounting for the value of the property, where the property itself, though still in the possession of the defendant, could not be recovered. The cases of McMahon v. McGraw, 26 Wis. 614, and O’Dell v. Burnham, 61 Wis. 562, 21 N. W. 635, are relied upon by plaintiffs’ counsel as authority to support a right of action under subd. 7, sec. 4222. In neither of these cases had any statute of limitations barred the plaintiff from recovering the-thing fraudulently taken away, to wit, the land, and in each of them the land was the thing sought to be recovered. ■ The circuit court held that the consideration paid by the-defendant for the farm was inadequate and that he should have paid $200 more, and that he should account for thisamountwith interest. ’ Also that a note given to the administrator for $352.36, payable on demand, should be accounted for with interest. It is conceded that this note was not paid to the administrator. He, however, treats it as cash in his final account, although he never made any attempt to collect it, and reports a balance of $315.97 cash on hand, which has-■never been accounted for. It is plain that the action brought will not lie against the defendants. The administrator is not before the court. We express no opinion as to his liability to-account for the balance which his report showed to be in his hands. The reporter’s minutes are incorporated in extenso in the bill of exceptions. The evidence as preserved in the bill of exceptions is printed without any abridgment whatever in the case, in manifest violation of Rule 6 of this court. By the Gourt. — The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment dismissing the complaint. No costs will be allowed in this court for printing the case.