Tellett v. Albregtson

Winslow, O. J. Appeals can only be taken from judgments or orders. Findings of fact and conclusions of law are neither; hence in the present case there is no appeal here except the appeal from that part of the judgment which fixes the amount recovered by the defendant and made a lien on the premises and fixing the time within which the same must be paid or the plaintiff barred of his right. Neither plaintiff nor defendant has appealed from those parts of the judgment which determine that the defendant has acquired Ole Nelson’s life estate therein by adverse possession and that the plaintiff owns the remainder in fee. The appellant has not suffered, however, by the failure to take a more comprehensive appeal. We have carefully examined the record and are convinced that the findings of fact both of the jury and the court are sustained by sufficient evidence and were arrived at without prejudicial error. So the only question before us is whether on the facts found the trial court reached the right conclusion as to the amount of the defendant’s equitable lien. That lien was made up of three component parts, viz.: (1) the amount of the mortgage paid, with interest; (2) the value of the improvements; and (3) the amount of the taxes paid, with interest. These will be considered in their order. 1. As to the mortgage and interest the trial court was clearly right. One who is compelled to pay off a mortgage on land in order to protect his own interest therein is entitled to be subrogated in place of the mortgagee and have the mortgage lien enforced in his own favor so far as necessary to protect himself against loss. Charmley v. Charmley, 125 Wis. 297, 103 N. W. 1106. Ole Albregtson, having taken possession, made extensive improvements, and paid the purchase price, all under a verbal contract of purchase made with the owner of the life estate, might doubtless at any time have •compelled a conveyance of the life estate, hence he had an interest in the land. Having been compelled, to pay off the [492] mortgage in order to protect that interest, he is now entitled to have the lien thereof preserved and enforced as against the remaindermen. 2. Different considerations arise as to the improvements. They can only he recovered for under sec. 3096, Stats. 1913, which provides that where recovery is had in ejectment of land “on which the party in possession or those under whom he claims, while holding adversely by color of title asserted in good faith, founded on descent or any written instrument, shall have made permanent and valuable improvements or shall have paid taxes assessed,” such party shall be entitled to have the value of the improvements and the amount paid for taxes and interest thereon assessed and declared to be a lien on the land. The defendant does not come within this class because, as against the plaintiff, Ole Albregtson, who paid the taxes and made the improvements, never held adversely by color of title founded on a written instrument. This seems to be clear for two reasons: first, the judgment in this case, which defendant has not appealed from, in effect finds that the possession of defendant and his father was adverse only as to Ole Nelson, the life tenant, and not as to the remaindermen, whose estate is now-held by the plaintiff; second, there was no “written instrument,” within the meaning of the section, held by Ole Albregtson at any time. It cannot logically be held that the deed to Annie Nelson which Ole Nelson turned over to Ole Albregtson at the time of the trade was such a “written instrument.” The defendant relies on Meade v. Gilfoyle, 64 Wis. 18, 24 N. W. 413, where it was held that the written instrument referred to in sec. 4211, Stats., defining adverse possession, was satisfied hy a tax deed running to the occupant’s grantor. The present case, however, is one where the supposed written instrument runs not to plaintiff’s grantor but to a third person, under whom neither the grantor nor the occupant claims. It is as though Nelson ha.d turned over [493] a deed running to John Smith. We are unable to see .how it can be said that there is a holding under color of title asserted in good faith founded on a written instrument in such a case. 3. We agree with the conclusion of the trial court that in this action the defendant is not legally chargeable with rents and profits and is not entitled to credit for taxes paid and interest. He is not chargeable with rents and profits because the plaintiff has only the remaindermen’s title. Although Ole Nelson deeded to the plaintiff’s grantor in 1911 he had no title to convey because his title had already been cut off by the statute of limitations. He is not to be credited with taxes paid because he purchased the life estate and it is the duty of a life tenant to pay the taxes. The trial judge, however, charged the defendant with $805 rents and profits for twenty-three years and credited him with taxes and interest amounting to $750.20, on the ground that the parties had both adopted the rule in the present case and hence he would apply it. In a written opinion the trial judge further says on this question: “The parties having made these concessions [the concessions above referred to] and no party claiming anything to the contrary, I accept their method of accounting-in this respect.” We find nothing in the record to contradict this statement of the trial judge, which is not only found in the opinion and finding but in the judgment itself, and is not. contradicted in either brief. It seems only fair, therefore, to approve of the inclusion of these items in the account, not because the law justifies it but because the parties have advisedly consented to it and the court has acted upon that consent. As matter of fact, it makes a difference of only $54.80 in the final result. The conclusion is that the judgment must be modified by eliminating the item of $900 for improvements from the amount adjudged to be recovered by the plaintiff and enforced by means of a lien on the premises, and as so modified the judgment must be affirmed. [494] By the Oowrt. — Judgment modified as of its date by reducing the amount recovered by the defendant and made a lien on the premises to $345.20, and as so modified affirmed; costs to be taxed in favor of the appellant.