Tellett v. Albregtson

Appeal: from what may he taken: Mortgages: Payment: Subrogation: Ejectment: Life tenant: Recovery for improvements: Adverse possession founded on “written instrument:” Accounting as to rents and profits, taxes, etc. 1. Appeals can only be talten from judgments or orders, not from findings of fact or conclusions of law. 2. Where the owner of a life estate in land has been compelled to pay off a mortgage in order to protect his interest, he is entitled to subrogation and to have the mortgage lien preserved and enforced as against the remaindermen.. 3. Sec. 3096, Stats., does not authorize recovery for improvements made by the defendant in an action of ejectment brought by re-maindermen or their grantee, where the possession of such defendant, though adverse as to a life tenant, was not so as to the remaindermen. 4. The owner of land conveyed it to his daughter. After her death he agreed to buy it from her husband, both supposing the husband to be the owner of it as heir of his deceased wife, when in fact he had only a life estate by the curtesy. No new deed was made, but the deed which had been given to his daughter was returned to the original grantor and he took possession of the land. Held, that such possession was not an adverse holding “by color of title . . . founded ... on any written instrument,” within the meaning of sec. 3096, Stats. 5. In ejectment by the grantee of remaindermen against one who had acquired the estate of a life tenant, although defendant was not legally chargeable with rents and profits and was not entitled to credit for taxes paid and interest, yet, the parties having agreed to the inclusion of those items in an accounting, and the trial court having acted upon such consent, such inclusion is approved.

Appeal from a judgment of tlie circuit court for Buffalo county: W. B. Quinlan, Judge. Ejectment for forty acres of farm land. The defendant claimed title by adverse possession under both the ten- and twenty-year statutes, and also claimed (in case of defeat on the question of title) to be entitled to a lien on the premises for a mortgage of $400 wbicb be bad paid tbereon, as well as for taxes and improvements. Tbe facts were not very seriously in dispute. Prior to March, 1885, Ole Albregtson (defendant’s father) owned the land and at that time deeded it to Annie Nelson, his daughter, a married woman (now deceased). Annie, with her husband, Ole Nelson, and her children, six in number, took possession of the premises, and in December Annie and Ole mortgaged the same for $400 to one Grover. Subsequently Annie and Ole with their family left the place and moved to La Crosse, where Annie died intestate in April, 1889, leaving her six children as her sole heirs at law. Thus the title became vested in the six children subject to the $400 mortgage and the life estate by the curtesy of their father, Ole. In the summer of 1890 Ole Albregtson, defendant’s father, attempted to purchase the land from Ole Nelson. Evidently both supposed that Ole Nelson owned it as heir of his deceased wife. They agreed that Ole Albregtson should purchase the land and pay the mortgage of $400 as the consideration therefor. No deed was made, but Ole Nelson returned the deed which Ole Albregtson had executed and delivered to Annie Nelson in 1885. Ole Albregtson took possession at once and remained in possession from that time until his death in August, 1909, making large improvements and paying the taxes regularly. He paid the mortgage in four annual in-stalments of $100 each, beginning October 21, 1891, and also paid the interest thereon. He died testate, devising this property to the defendant, his son. His will was duly probated, and the defendant has been in possession claiming title since his father’s death and up to the time of the commencement of this action in April, 1913. In 1911 Albert T. Nelson, one of the heirs of Annie Nelson, obtained conveyances from the remaining heirs of their interests in the land, also a conveyance from his father, Ole, of his interest, and in July, 1912,'conveyed the same by warranty deed to the plaintiff. The jury returned a special verdict covering the legal issues in the case by which they found (1) that Ole Nelson sold the property to Ole Albregtson in the summer of 1890 in consideration of the assumption and payment of said mortgage; (2) that at the same time Ole Nelson surrendered to Ole Albregtson the deed given by the latter to Annie Nelson; (3) that Ole Albregtson then went into possession of the premises claiming ownership; (4) that he continued to occupy under such claim until his death; (5) that defendant took possession thereof as devisee' of Ole Albregtson claiming ownership; (6) that defendant continued such possession under .such claim up to the time of the commencement of this action; (7) that the money with which the mortgage was paid was -not furnished by Ole Nelson; (8) that the value of the improvements made by Ole Albregtson was $900. On the trial of the equitable issues the court found that the improvements on the premises were made in good faith to preserve and protect the property, that the mortgage was paid in good faith to protect the estate, that the amount of principal and interest paid on the mortgage, with interest to the •date of the findings, is $582.60, that the taxes paid amount, with interest, to $167.60, that the reasonable rental value of the premises during the twenty-three years was $805, and that the defendant Albert went into possession of the premises claiming title immediately on his father’s death and has remained in possession claiming title up to the time of the trial. The trial court concluded that the life estate by the curtesy of Ole Nelson was barred prior to the commencement of this action by the adverse possession of Ole Albregtson and his dev-isee, the defendant, and that such life estate is vested in the defendant, that defendant is entitled to be subrogated to the rights of the mortgagee, Grover, and is also entitled to recover $900 as the value of the improvements made, together with the sum of $400, the amount of the mortgage paid. “That in an accounting between said parties the defendant is not legally chargeable with the rents and profits and is not entitled to credit for taxes paid and interest, but inasmuch as the parties have both adopted the rule in this case, that the defendant should be charged with the rents and profit's and be credited with taxes and interest paid and interest on taxes from the date of payment, I will apply that rule and find that the defendant should be charged with the sum of $805 as rents and profits, less the sum of $750.20, being the amount of interest paid, interest accrued, taxes, and interest thereon, leaving a balance of $54.80, with which defendant should be charged. Deducting this amount from $1,300, the amount of the mortgage and value of improvements, I find the defendant entitled to recover the sum of $1,245.20, together with his costs and disbursements in this action. “That defendant is entitled to have said sum, together with his costs and disbursements, declared a lien upon said land, and that plaintiff pay the same within sixty days after service of notice of entry of judgment upon him or his attorney, and that upon his failure so to dp he be forever barred of all claim or interest in said land.” Judgment was entered in accordance with the findings. By his notice of appeal the plaintiff appeals “from the order of the court made in said action, dated April 6, 1914, and from the conclusions of fact and conclusions of law in said order contained and from each and all thereof, and from the judgment rendered by the above named court in said action and entered on the 11th day of April, A. D. 1914, in favor of the defendant -and against the plaintiff for the sum of $1,245.20, and upon the failure of paying said sum within sixty days from notice of entry of judgment plaintiff be forever barred of all claim or interest in said lands in question and from the whole thereof.”