McAvoy v. Franklin

Wistslow, O. J. The evidence tending to show that the defendant fenced up the strip or dispossessed the plaintiff was [392] somewhat weak, but tbe finding cannot be said to be against tbe clear preponderance of tbe evidence and bence it must stand. Tbe other questions in tbe case are purely legal and present no serious difficulties. Both parties claimed title under Jannett Erost, bence it was unnecessary to go any further back than Mrs. Erost in proving title. It is true that she bad only tbe equitable title when she made her deed to tbe plaintiff, but when she subsequently fully performed her contract of purchase and received tbe legal title such title related back to tbe date of tbe contract (Western L. & C. Co. v. Copper River L. Co. 138 Wis. 404, 120 N. W. 277), and such relation would, of course, inure to tbe benefit of any grántee to whom she bad in tbe meantime conveyed any part of tbe land. So tbe plaintiff bad good legal title to bis strip before tbe defendant’s purchase, and, bis deed being duly recorded at tbe time of defendant’s purchase, tbe latter cannot claim to be an innocent purchaser without notice of tbe plaintiff’s rights. Tbe plaintiff, therefore, was clearly entitled to recover on tbe ground that be was tbe owner in fee of tbe strip (subject to tbe performance of a condition subsequent, if required) and that tbe same was unlawfully withheld by tbe defendant. Tbe last clause of tbe judgment which sets forth tbe duties and liabilities of tbe plaintiff with regard to fencing and gates is clearly not warranted by tbe ejectment statute. At this point tbe trial judge, deprecating tbe existence of this quarrel between neighbors, evidently attempted to frame a judgment, not according to tbe statute governing such actions, but based on what seemed to him tbe duties which one good neighbor owes to another. Tbe attempt clearly demonstrates tbe kindly heart of tbe trial judge, but it certainly cannot be approved. Tbe statutes provide what tbe verdict or findings and judgment shall contain in ejectment actions, and they do not cover any provisions of this kind. .Were these provisions [393] •at all prejudicial to the appellant, it would he necessary to reverse this part of the judgment; but they are not. On the contrary they are clearly to his benefit, and he cannot he heard to complain of them. By the Court. — Judgment affirmed.