Keilly v. Severson

Marshall, J.

Tbe findings of fact seem to have such basis in tbe evidence as to preclude disturbing them in any material particular. Counsel argue to tbe contrary at some length by a process of reasoning and method of analysis some *254 what out of harmony with the rules governing the subject. The clear preponderance of evidence required to warrant condemning a trial court’s findings, must appear so manifestly from the record, — after resolving all. fair doubts in tbeir favor and giving proper weight to those features in evidence below which could not be made to appear here, — as not to depend on any very careful weighing of probabilities. With this we pass the first complaint made without referring to the evidence except as to its general character.

The findings indicate this general situation: When the action was commenced appellant had the legal title to' the property in question with the right of possession as claimed, unless respondent had a superior right, in that she was the equitable owner and was entitled to retain possession as against, appellant and to be clothed with legal ownership.

Since appellant took title from Erickson with efficient notice on his part of the relations of respondent to the property, her rights therein were not affected by the change in legal ownership between the administrator’s deed and the commencement of the suit. If one buys real estate of another while the subject of the transaction is in possession of a third person, he is presumed to act with notice of all facts which such situation would suggest, or which could be obtained by diligent inquiry. Martin v. Morris, 62 Wis. 418, 22 N. W. 525 ; Roberts v. Decker, 120 Wis. 102, 97 N. W. 519.

There can be no question but that respondent violated the-statute, sec. 3914, Stats. (1898), prohibiting an administrator-from directly or indirectly purchasing or being interested in the purchase of any real estate sold by him. It is provided that all sales made contrary to such prohibition “shall be-void.” So respondent committed a wrong in law without, moral turpitude in the particular circumstances of the case. However, absence of any bad intent or actual injury to any one the statute was designed to protect, does not affect the nature of the title created by the improper transaction. By *255 the policy of the statute, regardless of the real purpose of the parties, the sale was constructively fraudulent, and efficiently so, if appellant is entitled to the benefit of the statute under the circumstances. The law in respect to the conduct of administrators is very important, and the court in all situations to which it applies must hold to a high standard of accountability.

In further discussing the case it must be appreciated that the word “void,” as used in the statute, means voidable. Until a sale made in violation of it be set aside in a proper action, the purchaser is vested with the legal title to the land and he cannot be divested thereof except in such proper action brought within a proper time by a person entitled to challenge, efficiently, the validity of the sale. McCrubb v. Bray, 36 Wis. 333; Martin v. Morris, 62 Wis. 418, 22 N. W. 525; Gibson v. Gibson, 102 Wis. 501, 78 N. W. 917.

The defect in the sale here, even as to a person the statute was designed to protect, was cured before commencement of this litigation by sec. 3918 of the Statutes limiting the operation of sec. 3914, in the circumstances of this case, to five years next after the sale. Moreover, the sale being voidable only, by force of the policy having for its object the protection of persons who might be injured because of being interested in an estate or claiming in some way under the dev-isee, — persons within the contemplation of sec. 3918, neither Erickson nor appellant is within the saving grace of the law. Eurthermore, appellant does not base his claim of right upon the invalidity of the sale. He claims under it.

So the character of the sale to Erickson does not cut any figure in this case, except as it has to do with the status of respondent in a court of equity. She, in effect, appealed to* that jurisdiction in defense and for affirmative relief because1 of an alleged wrong, made possible by her own violation of law. In such circumstances, under the peculiar facts, did she come into such jurisdiction with clean hands, under the rule *256 on that subject? If not, relief should have been denied to her in any event.

It is often, rather illogically, said that a person cannot successfully appeal to a court of equity unless he, himself, is without fault. If that were literally true, great wrongs, cognizable only in that jurisdiction, would go unredressed because of the victim being guilty of some fault of insignificant character as compared with that of his adversary, as in this case. Here there was reprehensible moral turpitude, as doubtless the trial court looked at the matter, — such that appellant, standing in the shoes of Erickson, should not reap the fruits thereof by shielding himself behind the really harmless fault, as to him; in plain violation of a quite dominating rule in equity, that no one can profit by his own wrong. Nemo ex suo delicto meliorem suam condilionem facere potest. All such rules are subsidiary to the all-pervading major principle, “Equity opens its doors whenever necessary to prevent fraud and injustice and where the relief asked conforms to the principles of rectitude and honesty.” Warden v. Fond du Lac Co. 14 Wis. 618, 620.

So, within a broad range, it rests in the conscience of the chancellor, whether, under the particular circumstances of the particular situation, equity ought to reach out its protecting arms in defense or redress. The seeker for such protection may not be wholly without fault and yet be entitled to some consideration. Do the principles of rectitude and honesty which should be the guide of human conduct, require or justify equitable interference? That is the test. There is no such stern rule as would close the eyes and ears, so to speak, of equity to the picture or cry of a distressed petitioner merely because of his hands not being entirely clean.

In the light of the foregoing, it is considered that the trial 'court did not go astray in deciding not to reject respondent’s claim because of her violation of the statute. As said before, substantially, it was a wrong without injury to any one con *257 ■cerned in tMs litigation. The fault was participated in by both parties to the transaction. There was no real moral turpitude on her part, — no bad intent to injure. The sole purpose, as it seems, on her side was, without real prejudice to others, to acquire the home on which she and her husband had resided for a long time before he died, that she might continue to have a home there for herself and children. Erickson was her brother. He evidently co-operated to enable her, legally, as he probably thought, to avoid losing her home. The agreement to buy in the property and convey it to her, he ratified after the sale by permitting her to pay the consideration into the estate out of her own money. He did not put a dollar into the property, even by payment of taxes, for many years after the transaction. For some five or more years the land was not assessed to him. It was then so assessed by his direction without consultation with her. It seems that at such time, or thereabouts, he conceived the idea of wronging his sister by refusing to convey the property to her, and later thought to put it beyond her reach by making the conveyance to appellant, his son-in-law. He, to all intents and purposes, after the sale, as before indicated, affirmed the arrangement with his sister, to the end that she might retain the home for herself and children, by not only requiring her, in legal effect, to make such payment, but by leaving her to pay the taxes and treat the property as her own for years. He did not assert title adversely to her by conveying the land till some fourteen years had elapsed. For substantially all that time, she was permitted tp remain in undisturbed possession of the farm, to all intents and purposes as if it were her own. Her right to a deed was not denied till near the last, but when she asked for one some excuse was given for not complying, which was not inconsistent with the rightfulness of her demand.

True, there is a conflict, more or less serious, as to some of the evidentiary circumstances referred to, and there are no specific findings as to some of them; but, by fair inference, *258 they are all within the scope of the finding wherein the trial court proposed deciding that respondent, from the date of the deed to Erickson down to the transfer to appellant, remained,, openly and notoriously, in possession of the premises as owner. It is thought quite clear that, subsidiary to that conclusion,, the evidentiary circumstances suggested as established by the evidence, were found to exist. Thus looking at the matter, it is considered they should stand as if specifically found.

The logical result of this decision is that the contention of appellant is wholly without equity and, notwithstanding the: initial fault, there is a very strong equity in respondent’s favor. She, in effect, took and retained possession of the property under Erickson. As before indicated, the circumstances, are equivalent to an agreement between the parties, made after the sale, that he would sell to her for the amount bid for-the property. The ratification after the administrator’s sale,, should, if necessary, be deemed, in equity under the circumstances, as giving effect to the arrangement as of the time of the later circumstance. Ratification may relate back or have-effect in 'prcesenii according to the equities of the particular situation.

Thus the trial court was warranted in treating the case as presenting a situation calling for specific performance of respondent’s contract with Erickson. It is quite clear after so much time, during which she occupied the property under such contract, a wrong would be committed against her for which there would be no adequate redress, if redress at all, if she were denied the relief embodied in the judgment.

The foregoing leads to these further observations to guard against its being thought that any feature of the written law has been overlooked.

The case is not one of consideration paid by one, title taken in another and a subsequent attempt to charge the latter as trastee of the former; so sec. 2077 of the Statutes does not apply. Neither is it one of asking for relief on the ground *259 of tbe validity of a sale though made in violation of sec. 3911. The case stands upon an admitted voidable sale, as to any person whom the statute was designed to protect, the voidable character, however, having been cured by the statute of limitations and not, in any event, being available to a person not within the protecting purpose of the violated law. The situation, in practical effect, is the same as the ordinary one of a verbal contract conveying real estate, so far performed on one side as to take it out of the statute requiring interests in realty to be created in writing; sec. 2304, Stats. (1898), and, being so taken out, the contract is enforceable on general principles of equity and under the statute, sec. 2305. It having been impossible to establish respondent’s right without disclosing her violation of sec. 3914 and thus showing that her prior wrong was an efficient element in producing the situation of which she complained, it became important to her status in equity to take account of the fact that the sale was voidable only, and not that as to appellant; that the infirmity, in any event, was cured by the statute of limitations; that it did not involve any moral turpitude or dereliction which, under the circumstances, ought to efficiently affect her status in the controversy with appellant who has no right, whatever, which he could well stand on in a court of equity, referable to the original infirmity in the title. Coming down to the ultimate, this was the simple question involved: Was there, in practical effect, a verbal sale, void at its inception under seú 2304 of the Statutes, but after the lapse of time and under the circumstance of part performance, enforceable under general principles of equity jurisprudence and sec. 2305, Stats. (1898) ? It is the judgment of the court that the trial decision rightly resolved such question in the affirmative.

By the Court. — Judgment affirmed.