Deery v. McClintock

Dixon, O. J.

This is an action for partition, which is resisted upon the ground that the plaintiff has no title, and that the defendant McClintock is the owner of the whole land. The answer of that defendant denies the title of the plaintiff, and that was the sole question litigated at the trial. The title asserted by the plaintiff is a purely legal one, claimed under a tax deed, whilst the defendant claims to be the owner in virtue of the original or government title. Possession of the land was claimed by both parties, at and for some years prior to the commencement of the action, but the facts were that it was vacant and unoccupied. Some occasional acts of ownership may possibly be shown to have been exercised by both parties, but the truth seems to be, as claimed by counsel for the plaintiff, that, from the time of the recording of his tax deed in December, 1862, until the present time, “ the premises in question have *202 been and are wild, vacant and entirely unoccupied lands, never having been occupied or possessed by any one, except occasionally a miner, on his own account, paying rent and attorning to no one, has for a short time prospected for mineral on some part of the land. ” Under these circumstances, the only question which the court is required to consider, or which it has considered and will determine, is, whether the mere legal title to land, the same being in good faith the subject of controversy, and in doubt, may be tried and adjudicated in this form of action, it appearing that the objection was taken in the court below, and is now renewed on appeal. It is not contended by counsel for the plaintiff that the remedy in partition given by our statute is not an equitable proceeding. It is conceded to be such. It was by bill in chancery before the enactment of the code; and the same statutory provisions, with some slight and immaterial modifications or change of names, still exist. The position of counsel, in short, is, that the blending of legal and equitable remedies, or the reduction of all, as near as may be, to a single form of action, under the code, has abolished the rule which formerly prevailed, that the action for partition, being equitable, was not the proper one in which to try and determine a question of legal title adversely claimed. The contention is, that the action,, though still equitable, has now become the proper one for the trial and adjudication of such an issue. A few considerations will, we think, suffice to show the error of this position, and that a court of equity is not now, any more than it formerly was, the proper forum in which to try and decide a question of mere legal title to land, and that the jurisdiction must still be refused. And first we observe, what all the adjudications since the enactment of the code maintain, that although the distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, ai e abolished, yet this only relates to the forms of actions, and doés not touch or effect their inherent qualities and differences, which, from the nature of things, are unchanged and unchangeable. The *203 change in the form of the action has not changed the nature of the action itself. It has not enlarged the jurisdiction of equity, nor abridged that of the law. This has been so often, of late, decided, and equitable interference refused on the ground that there existed an adequate remedy at law, that it seems unnecessary to remark upon it, especially in view of the provisions of the constitution of the state, under whbh it has been repeatedly held by this court to be incompetent for the legislature to take from the original or primary jurisdiction of equity and give- to the law, or to do the reverse. There existed in this case an adequate remedy at law to try the title, which, upon general principles, if the objection be properly taken, will always bar relief in equity. The provision of the statutes of this state (R. S., ch. 141, sec. 3; 2 Tay. Stats., 1665, §3), that, where the premises are unoccupied or not in the actual possession of any person, ejectment, or the action in the nature of ejectment, may be maintained against any one “ claiming title thereto or some interest therein at the commencement of the action, ” is familiar, as also are the decisions of this court made under it. Hill v. Kricke, 11 Wis., 442 ; Knox v. Cleveland, 13 id., 245; Whitney v. Marshall, 17 id., 174; Eaton v. Tallmadge, 24 id., 217. In the present case, the plaintiff might maintain such an action against the defendant, or the defendant against the plaintiff, unless barred by the statute of limitation, a point not material to the present inquiry. This, oridinarily, and probably in all cases where the objection is taken, should preclude any relief in equity.

But the considerations of greatest weight in our minds, and which seem to us controlling, are, the advantages which the defendant in partition must or may lose, if compelled to submit to a trial of the legal title in this form of action, instead of the trial in ejectment as provided by law. Judgments in partition are, as declared by statute and as has frequently been adjudged by this court, binding and conclusive as to the title or interest of all persons, parties to the action, and their legal rep *204 resentatives, and all persons claiming under tliem or either of them, except tenants, or persons having claims as tenants in dower, by the curtesy, or for life, to the whole of the premises which shall be the subject of such partition. R. S., chap. 142, secs. 31, 32; 2 Tay. Stats., 1684, §§ 31, 32; Nash v. Church, 10 Wis., 303 ; Marvin v. Titsworth, id., 320 ; Kane v. Rock River Canal Co., 15 id., 179; Allie v. Schmitz, 17 id., 169; Tallman v. McCarty, 11 id., 401. But in the action of ejectment this is not so, at least not so as to the first judgment, which may always be vacated and a new trial had at the option of the defeated party. Such is the absolute right of the party, if application be made therefor at any time within one year after the rendition of the judgment, and the other conditions prescribed ‘ by the statute be complied with. And such right may be exercised even after appeal, or writ of error, and affirmance of the judgment in this court. > The judgment in such action, rendered upon- the defendant’s failure to answer, does not become conclusive upon him, or upon persons claiming from or through him by title accruing after the commencement of the action, until the expiration of two years from the time of docketing the same. It is declared by statute, that, within two years after the docketing of such judgment, the court shall, on the application of the defendant, his heirs or assigns, and" upon payment of all costs and damages recovered thereby, vacate such judgment and grant a new trial. The same statute reserves other and further very important rights and privileges in this respect to any defendant who may be, at the time of docketing the judgment, either within the age of twenty-one years, or insane, or imprisoned on any criminal charge, or a married woman. R. S., chap. 141, secs. 20, 21, 22; 2 Tay. Stats., 1669, 1670, §§ 20, 21, 22. All these rights reserved and pri rileges accorded to the defeated party and defendant in the action of ejectment, and which must be conceded to be not unfrequently of great value to him, to say nothing of the advantage, often most material, of a new trial sometimes gained for misdirection, or the improper admis *205 sion of testimony, or other error in an action at law, would be wholly lost to the same party if required to litigate the same question or matter in controversy in a suit or proceeding in a court of equity. These considerations seem to us conclusive upon the point, and to show that the jurisdiction of equity does not attach and ought not to be maintained in a case like the present.

And the provision in the partition statute relating to the trial of certain issues of fact by a jury, and which is chiefly relied upon by counsel for the plaintiff, does not seem to aid their argument upon the point. The issues which may be so tried are obviously those arising between codefendants, where the joint tenancy or tenancy in common of any one is denied by any other of the defendants. The provision reads : “Any defendant may deny the joint tenancy or tenancy in common of any codefendant, and any issue of fact between the parties may be tried by a jury, as in other cases.” R. S., ch. 142, sec. 16; 2 Tay. Stats., 1681, § 16. It is possible that this may be intended as a substitute for ejectment in cases where that action would lie as between the codefendants, but even this may be regarded as not altogether clear. It is, however, clear that the provision has no application to a controverted question of legal title, where ejectment may be maintained as between the plaintiff and defendant.

The cases in this court where issues of title adversely claimed and asserted have been tried and determined in partition, have been only where such title was equitable in its nature, or where some recognized principle of equity jurisprudence was involved, thus making the title a proper subject of cognizance in a court of equity. Such were the cases of Barker v. Barker, 14 Wis., 131 , and Hannan v. Oxley, 23 Wis., 519 ; in the first of which it was answered by two of the defendants that the legal title claimed by the plaintiff was held in part in trust for them; and in the second, the title in controversy was, or was regarded as, merely equitable, being held un *206 der a deed from a husband directly to his wife. Those cases, therefore, in no way conflict with the rule now laid down.

A' point is made that the defendant has waived his right to object to the jurisdiction of equity by not having stated the objection in his answer; and the cases of Tenney v. State Bank of Wisconsin, 20 Wis., 152 , and Peck v. School District, 21 Wis., 522 , are cited. The rule of those cases is no doubt, in general, a correct one as there stated; but- it is not invariable or without its exceptions. Cases like the present, for a partition, where the legal title is disputed and doubtful, constitute one of the exceptions. In such cases- the practice is to refuse partition, even after the cause has gone to a hearing on the pleadings and proofs, and either to suspend proceedings in the action until the plaintiff has first established his title at law, or otherwise to dismiss the bill without prejudice to his right to file a new one after his title shall have been so established. Wilkin v. Wilkin, 1 Johns. Ch., 111 ; Coxe v. Smith, 4 id., 271. Such is the course which should have been pursued here, when it appeared that a doubtful and disputed legal title was the real subject of controversy, and that the plaintiff had his remedy at law by action in the nature of ejectment in which to establish it.

Counsel refer us to the decisions- of courts in some of the other states, where, in some cases, it seems to have been held that any issue of legal title may be tried and determined in partition. It appears that in some of the states the action is strictly a legal one, whilst in others it is both legal and equitable, courts of law and courts of equity having concurrent jurisdiction. We need not inquire particularly into the jurisprudence or modes of proceeding in those states, nor into the reasons ’ given by the courts for holding that issues of legal title may be so tried, since it is obvious, from what has already been said, that they can have no influence in the determination of the question in this state.

It follows from these views, that the judgment of the court *207 below, although against the plaintiff, who pressed the trial of the issue in equity, and in favor of the defendant, who resisted such trial, should be reversed. The court found against the title claimed by the plaintiff, and dismissed the action. Such judgment, if permitted to stand, would estop the plaintiff, and bar a recovery by him in ejectment subsequently brought. The judgment of dismissal, when that is the practice adopted, should be with liberty to the plaintiff to sue at law, and without prejudice to his right to commence a new action for partition when his title at law shall have been established. And this, in general, will, we think, be found to be the better practice— to dismiss the action, instead of attempting to retain it until the title at law has been established. The great delays which in many cases may and will occur before the trial and final establishment of the legal title, seem to render the latter course inconvenient and impracticable.

By the Court. — Judgment reversed, and cause remanded with directions as indicated in the foregoing opinion.