Mitchell v. Lyons

ViNJE, J. The court adjudged the tax deeds to Olive Lyons void because James Mitchell, whose duty it wns to pay the taxes under his agreement with his brother, caused one Duchac to purchase the tax certificates and furnished him with the money therefor; that Duchac at Mitchell’s request assigned the certificates to Olive Lyons, the mother-in-law of James Mitchell, who has resided with him since 1901; that Olive Lyons took with notice of the facts and paid no consideration for the assignment to her. The court also adjudged the mortgage of $1,400 given Wirig and the deed later executed and delivered to him void because both were made for the purpose of hindering and delaying the creditors of James Mitchell. The findings as to the invalidity of the tax deeds to Olive Lyons and the mortgage and deed to Wirig are sustained by the evidence. The complaint asked for the cancellation of only one tax deed, but the other, covering only a very small portion of the land, was received in evidence and vacated by the judgment. [402] The court no doubt considered the complaint amended to correspond to the proof, and properly so. There is no showing that the defendant Lyons was in any way prejudiced by the fact that the second tax deed was not pleaded. She also contends that, since she pleaded a disclaimer and showed by her plea that she had conveyed title to Kayhart, the action should have been dismissed as to her with costs in her favor. In addition to the disclaimer she also answered to the merits and made and tendered no release as required by sec. 3186, Stats. 1915. On the contrary, she defended the case on the merits and therefore was not entitled to a dismissal. That part of the judgment vacating the deed from Olive Lyons to Kayhart is not binding upon the latter, as he was not made a party to the action. Menasha W. W. Co. v. Winter, 159 Wis. 437, 448, 150 N. W. 526. The defendant Wirig claims that James Mitchell should have been made, a party to the action, since he was the grantor of the deed and the maker of the mortgage — two instruments, declared void by the- judgment. Since the plaintiff Henry B. Mitchell under the execution sale succeeded to all the interest that James Mitchell had in the lands, the latter was not a necessary nor a proper party. Both the defendant Wirig and the plaintiff Henry B. Mitchell deny any title in James Mitchell and he claims none, so he had no interest in the litigation. The further claim is made by both defendants that the plaintiff Henry B. Mitchell, being a purchaser at an execution sale under a judgment against James Mitchell, has no right to question the validity of conveyances made by James Mitchell prior to the entering of the judgment against him. Such claim was negatived in 'Eastman v. Bchettler, 13 Wis. 324, and the rule there announced, that the purchaser at an execution sale to whom a deed has been issued may maintain an action in equity to set aside conveyances in fraud of [403] creditors made before the judgment was docketed, has not been departed from. A dictum to the effect that if the conveyance was made for the purpose of delaying creditors it was void and the judgment became a lien upon the land, was explained in French L. Co. v. Theriault, 107 Wis. 627, 632, 83 N. W. 927, as applying to the case then in hand, in which the judgment had been enforced by a seizure of the land under the execution sale, but the doctrine of the case was not questioned. In Gilbert v. Stockman, 81 Wis. 602, 611, 61 N. W. 1076, 52 N. W. 1045, it is said that Fastman v. Schettler goes to the extreme limit of any adjudication in this court, but it is apparent that such a view was based upon the dictum referred to rather than upon the actual decision made.' Supreme Court Eule 11 provides that the respondent’s brief may state the leading facts or conclusions of law which the evidence tends to prove. Counsel for respondents have set out under this head over 100 pages of the evidence by question and answer. Upon the oral argument counsel frankly admitted that their brief was not in accordance with the rule and made a satisfactory explanation why it was not. Still appellants should not be required to pay for the printing of such a brief and no costs for printing same will be allowed. By the Court. — Judgment affirmed.