Hustis v. McWilliams

Eschweiler, J. The appellants in this case assert that there is no proper foundation in the evidence for certain of the findings of fact upon which the court reached its conclusions of law in favor of the defendants. The substance of the findings so attacked is as follows: That the plaintiffs knew at the time of their signing the so-called gravel-pit lease of the giving of the deed to the property in question by their father, John Hustis, to Dehne; that the plaintiffs knew at such time of the statement in the opinion of this court in the case of Koch v. Hustis, 113 Wis. 599, 87 N. W. 834, and quoted supra, that Laura Hustis was there declared to be the owner in fee of this property; that Dehne, at the time of the deed to him by John Hustis in 1904, did not know of the ownership by Laura Hustis of the property nor that it had been so found by the court in which that action was tried, nor that it was so stated in the opinion of this court on the. appeal of said case. An examination of the testimony, however, convinces us that there is evidence in this record to fully support each one of such challenged findings. The plaintiff, Mrs. Anthony, with her husband had lived at Hustisford many years prior to 1904; Mrs. Hustis and [371] the plaintiff Josephine L. Hustis had made their home in Milwaukee for-a great many years prior tp the mother’s death in 1900, although keeping up the family relationship with the husband and father, John Hustis, who lived from young manhood until his death in 1907 at the now village of Hustisford. It appears that John Hustis was substantially the only one, so far as the Hustis family is concerned, who took any active steps with reference to the keeping up of this property. So far as plaintiffs or their mother were concerned, John Hustis made all the assertions of ownership to this particular property. When repairs were to be made they were done under his supervision and direction. The revenues that came in any way connected with this property went through his hands. He repeatedly, during his long life in the vicinity and long after the conveyance to his wife by her brother, James Ludington, declared the dam itself to be his property. The notice of February, 1902, by John Hustis to Koch and Dehne, set out in the statement of facts, is of no significance as indicating any repudiation of title to the real estate by John Hustis or recognition by him of title in his children, and clearly relates to the upkeep of the structure of the dam and nothing else. It further appears that the plaintiff Josephine L. Hustis did know in 1902, from conversations had with the late General Winkler, her counsel in' the case of Koch v. Hustis, supra, that it had been therein determined that the mother rather than the father was the owner in fee of the property in question here. It also appears that she was informed by her sister, Mrs. Anthony, then living at Hustisford, that the father was conveying this property to Dehne, and such information came to her at or prior, to the time she herself signed the gravel-pit lease. No steps were taken-by either of the plaintiffs to repudiate the transaction or assert title until the commencement of this suit in 1908. Stress was laid upon the fact that Dehne, to whom' the conveyance was made in 1904 and through whom the de [372] fendants claim title, must have known that Mrs. Hustis rather than her husband was the owner, on the ground that search as to the title would have disclosed; and furthermore, that having been a witness in the lawsuit between- Koch and Mr. and Mrs. Hustis he must have known the result of such lawsuit and of the finding therein made, and sustained here, that the title was in Mrs. Hustis. He testified that he did not know, and the court was justified in so finding, and that Dehne, who had lived in the neighborhood many years, seeing and knowing of the transactions regarding this property by Mr. Hustis and of the relationship of the parties, was not, as against plaintiffs, bound to search for a possible title which plaintiffs might have had but did not then assert. It was plaintiffs who knew or ought to have known that there was a possible claim on their own behalf 'to this property derived from their mother’s estate at the time they joined in the gravel-pit lease knowing of the conveyance, for a valuable consideration, by the father to Dehne, acting in good faith and in reliance upon the assertion of title by John Hustis. ■ The property here involved was evidently considered as of no very great value at the time, as indicated by the consideration of only $450 paid by Dehne to John Hustis for such conveyance and the rights secured by the gravel-pit lease. Plaintiffs, without present protest, permitted this entire consideration to be paid to John Hustis. If their claim of title now asserted was then valid, the entire consideration belonged to them and not to their father. Their acquiescence in this transaction by their father under his assertion of title, with the knowledge they then had of the situation, brings them well within the doctrine that he who speaks not in assertion of his rights when he may, is, as to one who acts in reliance upon such situation, forever after bound to keep his peace and cannot .subsequently assert such right as against such good-faith and relying purchaser. Vilas v. Mason, 25 Wis. 310, 323, 324; McLean v. Dow, 42 Wis. 610, 614; Two [373] Rivers Mfg. Co. v. Day, 102 Wis. 328, 332, 78 N. W. 440; Marling v. Nommensen, 127 Wis. 363, 369, 106 N. W. 844; Williams v. J. L. Gates L. Co. 146 Wis. 55, 61, 130 N. W. 880; Mariner v. Milwaukee, 146 Wis. 605, 609, 131 N. W. 442; H. W. Wright L. Co. v. McCord, 145 Wis. 93, 100, 128 N. W. 873; Jones, Evidence (2d ed.) § 275. This disposition of the case renders it unnecessary to consider the exceptions presented by the defendants on certain of the findings of the trial court or any of the other questions presented on this appeal. By the Court. — Judgment affirmed.