#### Richer, Respondent, vs. Carlson, Appellant.

*September 10*

September *29, 1908.*

.(1) *Justices' courts: Actions involving title to land.*(2) *Judgment: Recovery of money paid on void contract.*

l.'Secs. 3619-3621, Stats. (1898), prescribing proceedings to be taken in an action in justice’s court “where tbe title to lands shall in any wise come in question,” are not limited to cases where the title to land is directly in issue. They apply to an *354action to recover a share of the proceeds of a sale of land by defendant to a third person, where plaintiff claims that the sale was made under authority from him and on his account or on joint account, and defendant denies that plaintiff owns the land and claims that it belonged to himself and that the sale was made on his own account.

2. In an action to recover a share of the proceeds of a sale of land by defendant to a third person, on the ground that defendant had held the title as security for purchase money advanced by him for the use of plaintiff, it being found that defendant ac- , quired the title to himself but orally agreed to sell to plaintiff, that plaintiff went into possession and made several payments, and that after the sale to the third person defendant repudiated such oral contract, it was not error to give judgment for plaintiff for the amount of the payments made by him under the oral agreement.

'Appeal from a judgment of tbe circuit court for Juneau county: J. J. Fbuit, Circuit Judge.

*Affirmed.*

Tbe cause was submitted for tbe appellant on tbe brief of *Veeder & Veeder,*and for tbe respondent on that of *J. T. Dithmar.*

Among other references upon tbe part of tbe appellant were tbe following: Secs. 3619, 3620, 3621, Stats. (1898) ; *Bird v. Kleiner,*41 Wis. 134; *Ohse v. Bruss,*45 Wis. 442; *Miles v. Ghamberlain,*17 Wis. 446; *Verbech v. Verbeck,*6 Wis. 159; secs. 2302, 2304, Stats. (1898) ; *Tates v. Martin,*2 Pin. 171; *Finkelston v. G., M. & St. P. B. Go.*94 Wis. 270, 68 N. W. 1005; *Potter v. Neceddh L. Go.*105 Wis. 25, 80 N. W. 88, 81 N. W. 118; *Jackson v. Jacksonport,*56 Wis. 310, 14 N. W. 296; *U. S. Exp. Go. v. Jenkins,*64 Wis. 542, 25 N. W. 549.

Among other references upon tbe part of tbe respondent were tbe following: *Ames v. Meehan,\*63 Wis. 408, 23 N. W. 586; *Maxim v. Wedge,*69 Wis. 547, 35 N. W. 11; Bryant, Wis. Justice (7th ed.) 41, 43, 46; *Starks v. Bedfield,*52 Wis. 349, 9.N. W. 168; *Gumps v. Kiyo,*104 Wis. 656, 80 N. W. 937; *Beebe v. Wis. M. L. Go.*117 Wis. 328, 93 N. W. *3551103; *Barchent v. Snyder,*128 Wis. 423, 107 N. W. 329; sec. 1688, Stats. (1898).

TimliN, J.

Respondent brought an action in justice’s court, averring in bis complaint: “above-named plaintiff became tbe owner of and went into possession” of a certain piece of land, describing it. Defendant by bis answer in justice’s court “denies that said plaintiff became or was tbe owner of tbe real estate in said complaint mentioned,” and gave a bond under sec. 3620, Stats. (1898), and tbe cause was removed to tbe circuit court under sec. 3621. Appellant now contends that tbe title to tbe land was not in any wise in question, notwithstanding tbe foregoing, because tbe averment of tbe complaint above quoted is followed by allegations showing tbe cause of action counted upon to be for tbe plaintiff’s share of tbe proceeds of tbe sale of this land by defendant to a third person under power or authority from plaintiff, and that defendant denies that tbe land belonged to tbe plaintiff, but admits tbe sale to a third person. He concludes, therefore, “we both agree tbe title is in another.”

We think this is one of tbe very cases provided for by tbe statute in question, and that upon tbe claim of tbe plaintiff and tbe denial of tbe defendant, both parties admitting tbe sale of tbe land by tbe defendant, but plaintiff-claiming tbe sale was made on bis account or upon joint account, and tbe defendant claiming the land belonged to and tbe sale was made by him for bis own account, tbe title to tbe land was in question under this statute. We cannot limit this statute to cases where tbe title to land is directly in issue without doing violence to tbe words of tbe statute, which apply to all actions in which the title to lands “shall in any wise come in question.”

Tbe plaintiff attempted to establish that tbe defendant was a mortgagee or trustee for tbe plaintiff, bolding tbe legal title by absolute deed from a third party, but as security for *356part purchase *money*advanced by defendant for the use of and at the request of plaintiff. The court below rejected this claim and took the view that the defendant acquired title from the third party to himself, but orally agreed to sell the land to the plaintiff, and that plaintiff went into possession and made several payments, and that after the sale by the defendant to a third party he repudiated this oral contract to convey to the plaintiff; consequently the plaintiff might recover from the defendant all payments made for the land to the defendant, or to the use of the defendant at defendant’s instance or request, under this contract void by the statute of frauds. We find no error in this disposition of the case and affirm the judgment

*By th& Court.*— Judgment affirmed.