#### Itzel, Appellant, vs. Winn and others, imp., Respondents.

*January 11*

February *22, 1910.*

*•Judgment:*Res judicata: *Mandate construed: Conveyance of land by trustee: Incumbrances: Wrongful possession of land: Liability for taxes paid by owner.*

1. Disallowance by tbe county court of a claim against an estate for breach of tbe covenant against incumbrances in a warranty deed from tbe decedent to tbe claimant, on tbe ground that tbe deed was a purely voluntary conveyance, involved only tbe question of the legal liability of tbe estate on such covenant, and is not a bar to a subsequent action by tbe grantee to compel tbe executor and trustee of the decedent to remove tbe in-cumbrance in question pursuant to tbe terms of bis trust.

*6462. In an action of interpleader brought by tbe executor and trustee-of a decedent to determine tbe validity and effect of a warranty deed given by tbe decedent in her lifetime and tbe duty of tbe • trustee, in whom tbe legal title was vested, as to transferring such title to tbe grantee named in said warranty deed free of incumbrances, a judgment sustaining tbe validity of tbe warranty deed as an effective exercise of tbe power of appointment reserved to tbe grantor in her prior conveyance to tbe trustee,, and directing tbe trustee to “deed tbe property in dispute” to-tbe grantee in said warranty deed, is decisive of a subsequent action between tbe same parties in which said grantee seeks to-compel tbe executor and trustee to cancel and discharge a mortgage which was specifically in question in tbe former action.

3. When a person bolding; tbe legal title to land and also a mortgage thereon is commanded by a judgment to “deed” tbe land to a. party who has by bis pleading asserted bis right to a deed clear of incumbrances, such judgment should be construed as requiring an effective deed conveying tbe premises free from tbe lien of such mortgage.

4. A wrongdoer who excludes tbe owner from tbe possession of land and deprives him of tbe rents and profits may be liable for such rents and profits but cannot be compelled to reimburse the-owner for taxes paid during such wrongful occupancy.

Appeal from a judgment of the circuit court for Milwaukee county: WaRjsen D. Taiieartt, Circuit Judge.

*Reversed.*

This is an. action in equity brought to compel cancellation- and discharge of a mortgage upon a city lot owned by the plaintiff in the eity of Milwaukee, and for further relief.

The facts are that prior to June, 1897, one Mathilda 0. Abbey, now deceased, was the owner of the lot in question, and that during that month she conveyed it, together with her other real estate and personal property, altogether amounting' to considerably more than $100,000, to- the defendant *Jolm JE. Wi/rm,*in trust to hold and manage, sell, collect rents andi profits, apply so much of the receipts as he might think proper to the support of the grantor, and reinvest the proceeds of collections and sales as he might think best, making it his duty to provide for the suitable comfort and support of the grantor during her life, defray the costs and expenses of maintaining *647tbe property, pay tbe lawful debts of the grantor theretofore contracted, and upon her decease, after payment of all her just debts and the expenses of the trust, to convey and assign the remainder of the property to such person or persons as the grantor might by instrument in writing, duly witnessed, acknowledged, and delivered in her lifetime, or by will appoint. It further appears that *Winn*accepted the trust and at once took possession of the trust property and entered on the discharge of his duties; that Mrs. Abbey was old and infirm; that the premises in question were subject to a mortgage of $5,000 executed by Mrs. Abbey March 18, 1897; that on September 2, 1898, Mrs. Abbey executed and delivered to the plaintiff a warranty deed of the premises; that she died two days later, leaving a will (which has been duly probated) wherein, after certain minor bequests, she gave and devised the residue of her estate, one fourth to her half-sister, the defendant *Aimie Mathews,*and three fourths to her nephew, the defendant *Taylor,*both of Phila'delphia; that the defendant *Winn*was duly appointed executor of the will of the deceased and is now such executor; that the defendants *Malhews*and *Taylor*denied the validity of said warranty deed to the plaintiff and demanded that said *Wwm*convey the said property to them, whereupon the said *Winn*in the year 1899 brought an interpleader action in the circuit court for Milwaukee county against the plaintiff and *Malhews*and *Taylor,*setting up the facts and asking the court to determine the rights of the parties in said lot; that after trial the circuit court set aside the deed because obtained by fraud and undue influence; that upon appeal to this court that judgment was reversed May 2, 1905, and the deed declared valid, and judgment was ordered “directing the trustee to deed the property in dispute to the defendant *Itzel” (Winn v. Itzel,*125 Wis. 19, 103 N. W. 220) ; that on July 6, 1905, judgment was entered in the circuit court for Milwaukee county pursuant to the mandate of the supreme court, adjudging that said *Winn*“deed the prop*648erty in dispute herein, to wit [describing it], to the defendant *Arma H. Itzel;’3*and that on January 8, 1906, the said *Winn*made a conveyance of the property in dispute and delivered the same to the plaintiff, *Itzel,*but the terms of the conveyance do not appear from the evidence.

It further appeared that in July, 1899, the plaintiff, Itzel, filed in the county court of Milwaukee county a contingent claim against the estate of Mrs. Abbey in which she claimed to be entitled under the covenants of warranty in her deed to have the $5,000 mortgage aforesaid satisfied out of the funds of the estate or else to be paid a sufficient sum to satisfy the same herself, and that objections to the claim were filed and a trial had and the same was disallowed April 12, 1906. It was also shown that the defendant *Winn*met the defendants *Mathews*and *Taylor*in February, 1900, and had an accounting with them of the funds in his hands as trustee and executor, and the balance of such funds was determined; that the question of the $5,000 note and mortgage was then raised (the same not having been presented by its holder as a claim against the estate and the time fixed for the presentation of claims having expired); that *Mathews*and *Taylor*insisted that it should not be paid out of the trust funds, and *Winn*insisted that he must be protected against the possible allowance of it as a contingent claim in favor of *Miss Itzel;*that it was finally agreed that *Winn*should purchase it of the holder, taking the money out of the funds belonging to *Mathews*and *Taylor*and taking an assignment in blank; that he should fill his own name in the assignment and discharge the mortgage if the contingent claim was allowed, but should fill in the names of *Mathews*and *Taylor*and deliver all the papers to them if the claim was disallowed, and that this arrangement was carried out, the assignment in blank being taken by *Winn*February 6, 1900, and the note, mortgage, and assignment having been since held by him; that *Wirm*had collected but $9.19 as rent upon the premises; that he paid the taxes for 1898 thereon out of the trust funds and the county taxes for *6491899 but no more; and that the plaintiff, *Itzel,*redeemed tbe taxes accruing thereafter up to and including the taxes of 1906, and paid therefor with interest and fees an aggregate of $1,231.

The court concluded that the mortgage still remained a valid lien on the property, and entered judgment dismissing the complaint and adjudging the mortgage to be a valid lien, and the plaintiff appeals.

*F. 0. Fschweiler,*for the appellant.

Nor the respondents there was a brief by *Franh M. Hoyt*and *Guy D. Goff,*and oral argument by *Mr. Hoyt.*

WiNsxow, O. J.

The respondents contend that the plaintiff’s claim is barred both by the judgment of the county court disallowing plaintiff’s contingent claim against the estate of . Mrs. Abbey and by the judgment of the circuit court in the former action of *Winn v. Itzel,*125 Wis. 19, 103 N. W. 220, rendered pursuant to the direction of this court. As to the judgment of disallowance of the contingent claim, it seems clear that it cannot be held as *res adjudicate/,*in this case. It clearly appears that the claim filed in the county court was simply a claim to recover against the estate for breach of the covenant of warranty against incumbrances contained in the deed from Mrs. Abbey to the plaintiff, and that it was rejected simply because the county court held that deed to be a voluntary conveyance, based upon no valuable consideration but only upon love and affection, and hence upon familiar principles there could be no recovery upon the covenant of warranty. That controversy only involved the question of the legal liability of the estate upon the covenant of warranty. Neither the question as to the duty of the trustee, *Winn,*to discharge the mortgage, nor the question of the validity of the mortgage after its purchase by *Winn*with moneys of the trust estate, was actually or necessarily involved, considered, or decided in that case.

The action of *Winn v. Itzel,*however, did involve in sub*650stance tbe question involved in this case. Tbougb tbe action was an action of 'interpleader and tbe present is essentially an action to remove a cloud upon title, botb were between tbe same parties and botb really involved tbe same general question, namely, tbe question as to tbe effect of tbe warranty deed before mentioned, and whether it became tbe duty of tbe trustee, by reason of tbe execution and delivery of tbat deed, to transfer to *Miss Itzel*tbe legal title of tbe premises in dispute free of incumbrances. It is true tbat tbe former action contained a larger question, namely, tbe question whether tbat deed was obtained by fraud, and, if tbat question were to be decided in tbe affirmative, then tbe other questions dropped out of tbe case; but, on tbe other band, if tbat question were to be decided in tbe negative, then it became necessary at once to decide tbe other questions as to the duty of tbe trustee. This appears certain because tbe trustee made all the claimants parties and laid the whole controversy before tbe court and prayed for direction as to bis duty; tbe defendants *Taylor*and *Mathews*came in and denied tbe validity of tbe warranty deed and prayed tbat *Miss Itzel*be required to quitclaim her apparent title to them; while *Miss Itzel*came in and alleged tbe validity of tbe deed and claimed tbat it was tbe duty of tbe trustee, by virtue of tbe trust deed, tbe warranty deed, and tbe directions of Mrs. Abbey, to execute to her a good and sufficient deed of the premises *free of all incumbrances,*the very incumbrance now in question being named and described in tbe pleading. So it seems not to be doubtful tbat tbe issue whether tbe mortgage in question should be paid by tbe trustee was fully presented and litigated between these same parties in tbe former action. True, tbe circuit court did not decide tbe question, because it held tbat tbe deed was void and hence there could be no duty on tbe part of tbe trustee under it; but when tbe case came here and this court held tbe deed to be valid, then the question of tbe trustee’s duty under it became necessary to be decided. Examination of tbe briefs upon *651that appeal show that counsel on both sides devoted their entire attention to the question of the validity of the deed and said nothing about the detail results in case the deed were held valid. It seemed to be taken for granted that if the deed were valid the results were not doubtful, and it is very evident that both counsel and court considered that the validity of the deed, if established, called for an affirmative judgment directing the trustee what to do with the legal title which had been placed in his hands in trust. The- trustee had asked the court for direction as to his duty, the parties interested had asked for the same thing, and it was the duty of the court to-respond.

It is to be regretted perhaps that this court did not respond more explicitly to this call. The mandate was that the-judgment be reversed and the cause remanded with directions “to enter judgment directing the trustee to deed the property in dispute to the defendant *Itzel.”*It appears that judgment, was entered in the circuit court in these words and that the trustee has made a deed (presumably a quitclaim deed) of the premises to *Miss*Itzel, but that the mortgage is still outstanding, having been purchased by the trustee in February, 1900, out of the trust funds in his hands under the arrangement with the respondents *Taylor*and *Mathews,*which is fully set forth in the foregoing statement of facts. The question now is as to the construction of that mandate. Does it. mean that the trustee is to execute a bare- quitclaim, or that he is to execute an effective deed of the lot ? The mandate says he is to “deed the property in dispute.” Now the property in dispute very clearly was the lot, free and clear of the mortgage. This court certainly was not expecting to frame a judgment which would leave undecided vital questions for future lawsuits and only partially respond to the issues made by the pleadings. That the Court considered Mrs. Abbey’s, warranty deed as an effective exercise of the power of appointment which Mrs. Abbey reserved to herself under her deed *652■of trust cannot be doubted, because under no other theory would it be the duty of the trustee to make a deed. But if it was an effective appointment, then it was an appointment with a direction to make the deed free of incumbrances, because it ■contained a warranty against incumbrances.

■We construe the mandate as a mandate to make an effective ■deed conveying the lot, and not a mere quitclaim conveying nothing but the equity of redemption after half or more of the property had been exhausted by incumbrances1. This construction becomes more reasonable also' from the fact that at the time the mandate was pronounced and ever since the trustee has been in possession of the mortgage by purchase with trust funds used for that purpose by the consent of the respondents. Thus it appears that the trustee was in position at that time and ever since to malee an effective deed of the property. When a person holding the legal title of real estate and a mortgage on the same real estate is commanded by a judgment to “deed” the same to a party who has1 by his pleading asserted his right to- a deed clear of incumbrances, it would seem that a fair construction of the word “deed” demands that he make an effective deed, not a deed which in effect reserves half the beneficial interest to himself. So we construe the judgment in the former action as requiring the trustee to make a deed clear of incumbrances, and hence decisive of the present action in the plaintiff’s favor upon that question.

The plaintiff also seeks to recover the taxes which she has paid on the premises during the time between the execution of the Abbey deed in 1898 and the date of the execution of the deed by the trustee in 1905, on the ground that during this period she was kept out of possession by the defendants wrongfully and deprived of the rents and profits, and that the wrongdoers should be compelled to reimburse her for the taxes paid during such period. We know of no legal -pifinciple which would justify such a recovery. Property owners must pay the taxes on their own property. If a wrongdoer takes pos*653session of the property he is or may be liable for the rents and profits during his occupancy, but not for the taxes which the owner pays. The proof shows that as matter of fact a tenant was in possession during the whole time; that owing to a notice from the plaintiff the tenant paid no rent to the trustee except $9.19; and that the property was in so ruinous a condition that the trustee concluded it to be unwise to attempt to collect the rent by legal proceedings or to repair the property.

There should be a judgment against *Wmn*for the $9.19 so collected as rent, in addition to judgment declaring the property to be free from the lien of the mortgage in question.

*By the GouH.*— Judgment reversed, and action remanded with directions to render judgment for the plaintiff in accordance with the opinion.

BauNES, J., dissents.