Opinion
October 9, 1939 —
November 7, 1939.
APPEAL from a judgment of the circuit court for Sauk county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellant there was a brief by Robert F. Holmes, attorney, and Hill, Miller Hill of counsel, all of Baraboo, and oral argument by Mr. Holmes and Mr. James H. Hill, Sr.
For the respondents there was a brief by Kopp Brunckhorst of Platteville, and oral argument by Arthur W. Kopp.
Bertha Roick, the plaintiff, commenced this action on December 17, 1935, seeking partition of certain lands in Sauk county, Wisconsin, claiming to be the owner of an undivided one-third interest therein. The action was begun against Virgil Roick, trustee of the Ida Roick trust estate, and against him and eight other persons as individuals who have or claim to have some interest in said premises. The defendants answered, and by way of counterclaim asked to have the title to said premises quieted in them. From the judgment entered on August 18, 1938, dismissing the plaintiff's complaint and granting the defendants the relief prayed for, the plaintiff appeals.
From the findings of the trial court it appears that Theodore Roick died intestate on the 10th day of September, 1907, and left surviving him three children, Herman, Robert, and Ida. At the time of his death, Theodore Roick was the owner of the premises described in the plaintiff's complaint. It appears at the time of his death that Theodore Roick held the title to certain other lands which had been in part purchased by Robert and in part by Herman, and on the 1st day of June, 1909, Herman, Robert, and Ida entered into an agreement by which the title to these lands was to be conveyed to Robert and Herman; the remainder of the lands, including those described in the plaintiff's complaint, were assigned share and share alike to the three children, Herman, Robert, and Ida. The premises conveyed to Herman, and upon which he lived, adjoined those sought to be partitioned and were occupied by Herman Roick and his wife, Bertha, the plaintiff. Herman Roick died June 9, 1909, leaving the plaintiff as his sole heir at law.
The court further found that since the time of the death of Theodore Roick, Robert and Ida and the devisees of Ida Roick, the individual defendants herein, occupied the premises described in the complaint as their own from 1907 until the commencement of this action in 1936; that they occupied said premises to the exclusion of all others claiming it as their own, having it assessed in their names, paying all the taxes, insurance, having the insurance policies issued in their own names, taking all of the proceeds therefrom; that during the time of occupancy they made many varied and valuable improvements, and in all respects treated the same as if the premises were their own; that during that time neither Herman Roick nor the plaintiff was consulted in any manner with respect to the upkeep and improvement of the farm, nor did either of them ever make any demand for rent; that when Robert died in September, 1927, his estate was duly probated; that the plaintiff made no claim against his estate; that Ida died in September, 1932, and her estate was duly probated in Sauk county, and that the plaintiff made no claim against the estate of Ida; that Robert died intestate, leaving Ida his sole heir at law, and Ida devised the premises to the individual defendants named herein as her sole property; that the first claim of ownership or interest in the premises in question made upon either Robert Roick or Ida Roick by the plaintiff was the commencement of this action.
The court further found that Robert Roick and Ida Roick and their successors, the defendants, have for more than twenty-eight years immediately preceding the commencement of this action, been in the actual, continued, open, and exclusive occupation and possession of said premises under claim of title to the whole thereof, adverse to and exclusive of the rights of any other persons.
The court further found that the plaintiff had knowledge of the fact that Robert and Ida and their successors claimed the exclusive title and right of possession in and to said lands.
The court also found that the plaintiff was guilty of laches, and that the defendants were entitled to a judgment quieting title in them, and judgment was entered accordingly.
The trial court was of the view that this case was ruled by Hahn v. Keith (1920), 170 Wis. 524, 527, 174 N.W. 551, in which view we concur. In the Hahn Case, Joseph Keith, the original plaintiff, died during the pendency of the action, and Hahn, administrator, was substituted. In the opinion for convenience Joseph Keith was called the "plaintiff." William Keith, the father of the plaintiff and the common ancestor of the parties, died about 1872, leaving him surviving a daughter, Rachel, a son, Joseph, the plaintiff, a daughter, Margaret, a daughter, Elizabeth, a daughter, Nancy, a daughter, Iona, and a son, George Wesley Keith. His widow, Sarah Keith, never remarried and died in 1892. She continued to reside on the farm until November, 1883, when she removed therefrom and never returned to it as her residence. The plaintiff claimed title to the land through a deed from his mother executed in 1883 and adverse possession since the death of his father. The action was begun June 4, 1917. After the death of the father, the plaintiff, the oldest son, and the mother continued to live on the farm with the other children. As soon as the other children reached a suitable age, they went out to work returning occasionally for longer or shorter periods as suited their convenience. After they left the farm they contributed very little to the support of the mother. Joseph was married in 1871. At the time he received the deed from his mother he gave her a mortgage. In 1896 he executed and recorded a mortgage to one Lizzie Fish and another one in 1901. Plaintiff lived continuously upon the farm with his mother after the death of his father up to the time of the trial except for about two years prior to November 3, 1883, when he lived on an adjoining farm, and from November, 1883, he had exclusive possession of the farm until the time of the trial. He paid the taxes, the land was assessed to him; he made valuable improvements. The brothers and sisters who were living testified at the time of the trial that they were satisfied to let him have the use of the farm while he lived, and supposed that at the time of his death they would receive their share, and gave this as the reason why they never asked for an accounting. The trial court found that the plaintiff had title by adverse possession and entered judgment quieting title in Joseph, which judgment was affirmed by this court.
It is considered that the facts in the present case present a much stronger case of adverse possession than do the facts in the Hahn v. Keith Case, supra. The plaintiff, however, argues that the possession of the defendants Robert and Ida was in the beginning permissive, and that Robert and Ida made no declaration or committed no act which brought home to the plaintiff knowledge of their hostile claim to the premises. When consideration is given to the fact that the plaintiff resided upon an adjoining farm, and that during all of the years neither she nor her deceased husband ever made any claim to the proceeds of the farm; that some sort of settlement or arrangement was made between the children with respect to the disposition of the father's estate; that Robert and Ida occupied and improved the premises, used the proceeds derived from the sale of farm produce in all respects as if it were their own, the conclusion cannot be escaped that the plaintiff and her husband not only knew of but acquiesced in the adverse claims of Robert and Ida. How else can the fact that Robert's estate was administered and assigned to Ida as the sole heir as if he and she were sole owners thereof, without any objection on the part of the plaintiff, be explained. Likewise the estate of Ida was administered as if she were sole owner thereof, no claim filed against her estate by the plaintiff and it was assigned to the individuals, defendants in this action, as if she were sole owner. Not until she was seventy-eight years of age, nearly thirty years after the death of Theodore Roick, did Bertha make any claim to the premises in question. The plaintiff lays great emphasis upon the fact that Robert as administrator of the estate of Theodore Roick caused a judgment to be entered assigning the estate to Herman, Robert, and Ida. Robert and Ida did not take title under the judgment. They derived their title from their father by descent. The final decree of the county court distributing the estate of the father did not transfer the title but merely determined the persons entitled thereto and their respective interest therein. Latsch v. Bethke (1936), 222 Wis. 485, 269 N.W. 243. The trial court did not proceed upon the theory that Robert and Ida were owners in fee from the beginning but that in hostility to the title of Herman and the plaintiff they adversely possessed the premises for more than twenty years, which under the statute bars the title which would otherwise have been in Herman and the plaintiff as his heir. Upon controverted points the findings of the trial court were sustained by the evidence, the court correctly applied the law, and its judgment must be affirmed.
By the Court. — Judgment affirmed.