#### Allen, Appellant, vs. Ellis and others, Respondents.

*September 13*

October *3, 1905.*

*Cloud on title: Judgments: Privity:*Res ad judicata: *Witnesses: Ex-*1 *animation: Inconsistent statements: Appeal: Findings when disturbed: Evidence: Vendor and purchaser: Adverse possession: Appeal.*

1. The facts, stated in the opinion, are *held*sufficient to constitute a cause of action in equity to remove- a cloud upon the title to premises plaintiff claimed to own.

2. The assignee of the original judgment, for the satisfaction of which a garnishment action was prosecuted, and in which garnishment action the assignee was not a party, did not appear, and was not, but the original judgment creditor was, beneficially interested, is a stranger to the garnishment action.

'3. In such case the assignee, although he obtained the judgment from the plaintiff in both the original and garnishment actions, is not bound as a privy by a finding in the garnishment action.

4. In such case, since the parties were not the same and the decision in the garnishment action would not be conclusive against such assignee, it is not conclusive in his favor, and the 'doctrine of *res adjudicata*does not apply.

5. Where there are some discrepancies in a witness’s testimony given upon various examinations in different actions, but of slight importance, and explained by the witness as mistakes in recollection, resulting from the lapse of time and the complications arising out of the different transactions involved in the litigation, the trial court is not thereby justified in disregarding his evidence in the cause on trial.

6. On an issue as to whether the relation of mortgagor and mort- - gagee existed, the findings of the trial court cannot be disturbed where, under the evidence, stated in the opinion, the court had good ground to conclude that that relation did not exist.

7. The trial court’s conclusion that, by a contract to convey all of vendor’s property with certain specified exceptions, lands in dispute, though not specified, were excepted, is *held*supported by the evidence.

.8. A .father went into possession of land with the consent of his son under an agreement to occupy and cultivate for his own benefit, and with the further agreement that the title should be in the son. Such possession and use continued under such arrangement up to the time of the father’s death, a period of twenty-seven years, with nothing to indicate that there was any change *566in the character of the father’s possession. *Held,*that the facts, necessary to show hostile possession by the father did not appear.

9. Questions not covered by the findings and judgment, not considered upon the trial, and concerning which no reguests for findings were presented to the lower court nor covered by exceptions preserved in the record, will not be considered on appeal..

Appeal from a judgment of the circuit court for Eau Claire county: E. W. Helms, Judge.

*Affirmed.*

This is an action wherein the plaintiff asks the judgment of' the court declaring that he is the owner in fee of the premises described in the complaint and that defendants he declared to. have no estate or interest therein; that the mortgage appearing of record on the premises he ordered satisfied, and that an accounting he had between plaintiff and defendants as to the-rents, issues, and profits of the premises and for injuries done by defendants to plaintiff’s estate in the lands; and that plaintiff have judgment for whatever sum may he found due him and for the possession of the premises. The defendants deny that the plaintiff- has any right, title, or interest in the-premises, and claim that the title to the land is in the defendant *J. F.*Filis, and aver that plaintiff is not entitled to an accounting as prayed for, and that plaintiff’s claim that he is owner in fee of the lands is without foundation and fraudulent ; and they demand that plaintiff’s complaint he dismissed,, and upon their counterclaim they demand judgment that plaintiff’s deeds and those of his immediate grantors under the execution sale on judgment against H. 0. Ellis as judgment debtor he held void, and that said judgment, which was assigned to this plaintiff and for which execution issued, be-ordered satisfied of record as fully paid and discharged. It is-also averred that II. 0. Ellis is dead.

The material facts, as appears from the undisputed testimony and the findings of the court, are as follows: On May 24, 187 6, Frederick A. Moore, who at that time was the owner in fee simple of the lands described in the complaint, con*567veyed them to the defendant *J. F. Filis.*The deal with Moore was made by H. 0. Ellis, father of the defendants, and, npon delivery of the deed to *J. F.*Filis, H. 0. Ellis' went into immediate possession, improved and managed the lands as part of his farm, and treated the premises in all respects as his property. He also, either directly or indirectly, paid the purchase price of the land's to Moore.- There was no agreement between *J. F. Filis*and H. 0. Ellis that *J. F. Filis*should hold the title as security for an obligation running from H. 0. Ellis to him and that he should convey to H. 0. Ellis upon payment by H. 0. Ellis of the purchase price of the lands.

“(4) That prior to June 23, 1886, a judgment had been rendered in the circuit court for Trempealeau county in favor of Geo. W. Whereatt against the defendant *J. F. Filis*for $2,938.10 on a default, and that on said June 28, 1886, the defendant *J. F. Filis*gave an appeal bond upon appeal from said judgment to the supreme court, conditioned to pay said judgment, if said judgment should be confirmed in said last-named court, which said bond was signed 'by Chas. L. Allen, John J. Worth, and Hurando C. Ellis as sureties, the latter being the individual mentioned throughout these findings as II. C. Ellis; that upon said appeal the said judgment was affirmed, but subsequently, upon application to the circuit court, the said defendant was allowed to open the case and file an answer in said action and defend the same, but in said order 'opening the case and allowing answer it was provided that said judgment stand as security for any judgment subsequently obtained upon the trial of the issues raised by said answer.

“(5) That thereafter, aud upon the trial of the issues in. the action mentioned in finding 4 upon its merits, judgment was rendered in favor of the plaintiff Whereatt and against defendant *J. F. Filis*on August 25, 1895, for $1,940.35.

“(6) That thereafter suit was begun on the bond mentioned in finding 4, and on June 12,1899, judgment was rendered therein in favor of said Whereatt against John J. Worth and H. C. Ellis for the sum of $1,726.42 damages and $45.20 costs, amounting in all to $1,771.62. .

*568“(7) That on July 12, 1899, said last-mentioned judgment was docketed in the circuit court of Eau Claire county, and on July 20, 1899, the same was docketed in circuit court of Dunn county.

“(8) That on April 16, 1901, the sheriff of Eau Claire county sold the lands in Eau Claire county described in the complaint on an execution issued upon the judgment mentioned in finding 6, and on April 11th the sheriff of Dunn •county sold the lands lying in Dunn county described in the complaint on an execution issued in said last-mentioned judgment ; that in both instances the lands were sold to one R. K. Doyd.

“(9) That on July 23, 1902, the sheriff of Eau Claire county issued to said R. K. Boyd a sheriff’s deed of lands mentioned in the complaint as lying in Eau Claire county, and on July 21, 1902, the sheriff of Dunn county issued to said R. K. Boyd a sheriff’s deed of the lands mentioned in the complaint as lying in Dunn county, both of said deeds being issued upon said sales aforesaid.

“(10) That on August 17, 1903, the said R. K. Boyd by quitclaim deeds conveyed the lands mentioned in the complaint to *E. W.*Allen, the plaintiff herein.

“(11) That on the 17th day of August, 1903, the Southwestern Land Company, a corporation, by quitclaim deeds conveyed to said plaintiff herein the lands described in the complaint.”

On September 1, 1893, *J. F. Ellis*by written offer agreed to sell, assign, and convey to the Southwestern Land Company all of his property, with certain specific exceptions, in consideration of the company assuming and agreeing to pay certain specific obligations. The offer contained no specific description of the property covered by it. This offer was duly accepted by the company. The lands in dispute were not specified as excepted, but neither *J. F. Ellis*nor the land company has considered this land as covered by this contract. On June 28, 1886, *J. F.*Ellis, LL C. Ellis, John J. Worth, and Charles L. Allen signed an undertaking for *J. F. Ellis*on appeal to the supreme court from a judgment rendered in favor of *569George W. Whereatt. The judgment had been rendered on default, and *J. F. Ellis*was afterward permitted to defend on the merits; the judgment being allowed to stand as security. Judgment was again rendered in favor of Whereatt. Whereatt sued to recover on the undertaking given on the appeal from the first judgment, and recovered judgment therein for $1,111.62, June 12, 1899, against H. 0. Ellis and John J. Worth. Charles L. Allen successfully defended under the •statute of limitations, and no judgment was rendered against *J. F.*Ellis, because he had been discharged in insolvency proceedings from the payment of his debts. Whereatt thereafter commenced a garnishee action against the Southwestern Land Company and *J. F.*Ellis, as'garnishees of H. C. Ellis, to apply the property of IT. C. Ellis to the satisfaction of the judgment for $1,111.62 obtained June 12, 1899, against H. 0. Ellis and John J. Worth. This action was commenced before Whereatt transferred his judgments to *E. W-*Allen, the plaintiff, but was decided afterward. Where-att sought to recover from *J. F.*Ellis, as garnishee of IT. C. Ellis, the real estate in controversy in the present suit; but The court found that he was not liable as such .garnishee, as he had no property under his control or in his possession belonging to IT. C. Ellis. *J. F. Ellis*appealed to the supreme court from the second judgment in favor of WThereatt, and *Samuel Ellis*and Peter Hanson signed the appeal bond. After an affirmance of this judgment Whéreatt brought suit ■against *Samuel Ellis*and Peter Hanson on this bond, and re-, covered judgment against them for $1,228 on September 26, '1898. The Southwestern Land Company, which had agreed •with *J. F. Ellis*to protect these bondsmen, defended the action for them. On July 19, 1899, Whereatt assigned his judgments to the plaintiff, *E.*17. *Allen.*

The court found as conclusions of law that plaintiff acquired -no title under the quitclaim deed from E. K. Boyd, ■and that he acquired no title under the quitclaim deed from *570the Southwestern Land Company, because the lands in controversy were not included in the contract between *J. F. Ellis-*and the land company. The court accordingly awarded judgment dismissing the complaint.

For the appellant there was a brief by *Wickham & Farr,.*and oral argument by *James Wickham.*

*W. F.*Bailey, for the respondents.

Siebeckee, J.

The plaintiff brings this action, demanding that the title acquired by him to the lands in question be confirmed, that he be declared the owner in fee, and that it be decreed that the defendants have no interest in the lands, and that they be barred from exercising the rights of ownership and possession which they assert and seek to maintain. The facts alleged by the plaintiff are sufficient to constitute a cause of action in the nature of a suit in equity to remove the cloud upon the title which he claims to own, and which, if found valid, makes him the owner in fee of the lands and gives him the right to the possession thereof. As stated in *Pier v. Fond du*Lac, 38 Wis. 470:

> “The remedies given in such action are broad and ample. To give effectual relief the court will decree the reformation, surrender, or cancellation of deeds and other instruments affecting the title, or the reformation or cancellation of records and the execution of deeds and releases. In short, it possesses power to decree adequate relief and to enforce full execution of its judgment.” - -

Other cases holding that such a bill may be maintained are collected in *Kruczinski v.*Neuendorf, 99 Wis. 264, 74 N. W. 974.

B. K. Boyd, as purchaser at an execution sale in April, 1901, under a judgment against H. C. Ellis, secured a sheriff’s deed of the premises in July, 1902. A quitclaim deed of the interest thereby acquired was made by B. K. Boyd and wife to this plaintiff on August 17, 1903. On the trial of the issues the court found that plaintiff had acquired no title or *571interest in tbe lands under this conveyance from E. K. Boyd. Tbe conclusion of tbe court is based on tbe ground that, tbougb H. 0. Ellis paid tbe consideration for tbe lands wben they were purchased from Moore, tbe title thereto was taken in tbe name of *J. F. Filis,*bis son, and was so held from the-date of purchase to tbe commencement of this action. Exception is urged to this conclusion of the court on tbe ground that- tbe finding is against the clear preponderance of tbe evidence, and upon tbe further ground that the plaintiff stands in privity with the judgment creditor in tbe action wherein tbe sheriff’s deed issued on execution sale, and that tbe same question was litigated between such judgment creditor and tbe defendants in a garnishment action Wherein tbe property was sought to be reached in satisfaction of tbe original judgment which plaintiff had purchased, and therefore such finding is *res adjudicaba,*in this action between plaintiff and tbe defendant *J. F. Filis.*It appears that plaintiff is tbe purchaser of' tbe judgment in tbe case of Whereatt v. IT. 0. Ellis et al., and that Whereatt commenced an action against the Southwestern Land Company and *J. F. Filis*as garnishee defendants for tbe purpose of reaching any property in tbe bands’ of’ tbe garnishees and of applying it in satisfaction of tbe judgment in tbe original action of which tbe plaintiff is tbe as-signee. Tbe present plaintiff was not a party to, nor did be-appear in or have any control over, the proceedings in tbe garnishment action. Tbe garnishment action went to judgment upon trial, and tbe court held that *J. F. Filis*was not liable as garnishee, and dismissed tbe action as against him. Tbe court found as a fact in tbe garnishment action that tbe title to tbe land involved in tbe present suit was conveyed to-*J. F. Filis*under an agreement between him and bis father,. H. 0. Ellis, “that, upon payment by tbe latter of the sum which *F. F. Filis*bad paid for tbe land, tbe said lands should thep upon demand be conveyed by the said *J. F. Filis*to tbe said H. C. Ellis.” It is claimed that tbe determination of *572tbis question in tbe garnishment action is binding upon tbe parties to tbe present action, because tbe present plaintiff, *Edward*W. Allen, was tbe assignee of tbe original judgment, for tbe satisfaction of which tbe garnishment action was pros--eeuted by tbe plaintiff therein. There ig nothing to show that tbe plaintiff was beneficially interested in tbe prosecution of tbe garnishment'action. So far as it appears, that proceeding was wholly in tbe interest of and for tbe benefit of tbe original judgment creditor. Tbis situation leaves tbe plaintiff in tbis case a stranger to tbe garnishment action.

But it is claimed that, since be obtained that judgment by purchase from Whereatt, who was plaintiff in both tbe original and tbe garnishment actions, be is bound by such finding in tbe garnishment action as a privy. Tbis claim we do not •consider well founded. To constitute privity as here asserted it must appear that there was a mutual or successive relation-■sbip to tbe right of property affected by tbe judgment which was assigned to tbis plaintiff.

> “It is only when tbe particular property or right which has been transferred has been affirmatively shown to have been tbe subject matter of tbe former litigation, and its status ■settled thereby, that tbe effect of tbe litigation is conclusive upon a grantee or transferee of tbe property.” *Grunert v. Spalding,*104 Wis. 193, 225, 80 N. W. 589, 590.

> “In the doctrine of *res adjudícala,*privity extends no farther than tbe particular subject matter or property, tbe status •of which was determined by tbe judgment as to that particular thing. . . . Tbe mere personal effect of tbe judgment, however, is absolutely confined to tbe parties to tbe litigation. It does not attach to and become a rule of property as to any ■other thing than tbe particular subject of tbe controversy, which was closed by the judgment.” *Hart v.*Moulton, 104 Wis. 349, 354, 80 N. W. 599, 600.

Tbe plaintiff in tbe instant case, as assignee of tbe judgment in tbe original action, became successively related to tbe rights of property which were determined by tbe judgment •so assigned to him. Tbe questions involved and litigated in *573the garnishment action are independent of, and are not included in and covered by, the judgment in the original action. The matters concluded therein ara'confined to the parties to that litigation, and the mere personal effect of such judgment, which estops the parties as to the matters embraced therein, does not pass with the transfer of the original judgment, though the party plaintiff was- identical in both' actions. Since the parties are not the same, and since the decision in the garnishment action would nat.be conclusive against this plaintiff, it follows that it is not conclusive in his favor, and the doctrine of *res adjudícala*does not apply. *Grunert v. Spalding, supra; Hart v. Moulton, supra; Hunt v. Haven,*52 N. H. 162; *McDonald v. Gregory,*41 Iowa, 513; *Burlen v. Shannon,*3 Gray, 387; 1 Herman, Estoppel and Res Adjudicata, § 135; *Shipman v. Rollins,*98 N. Y. 311; *Lenz v. C. & N.*W. *R. Co.*Ill Wis. 198, 86 N. W. 607.

Appellant directs our attention to the testimony bearing on the finding of fact that the relationship of mortgagor and mortgagee did not exist between the defendant *J. F. Ellis*and his father as to the lands in controversy, and asserts that there is such a conflict in the evidence of *J. F. Ellis*in his action and his evidence in other actions on this question as to make his evidence in this case incredible. An examination of the evidence does not warrant such an inference. True, there are some discrepancies in his evidence given upon the various examinations in the different actions'. They are, however, of slight importance, and were explained by the witness as mistakes in recollection, resulting from the lapse of time and the complications arising out of the different transactions involved in the litigation. The tidal court would not have been justified in disregarding his evidence in the case. Taking it into consideration with the other evidence in the case, the court had good ground to conclude that the relationship of' mortgagor and mortgagee did not exist, and its finding on this subject cannot be disturbed.

*574Appellant also claims that the respondent *J. F. Filis*conveyed .whatever interest he had in the lands in controversy to the Southwestern Land Company by the contract of September 1, 1893, and that this land company conveyed such interest to him by the quitclaim deed of August 17, 1903. The court found that the parties to that contract did not in fact intend to include the lands in question in this contract, and that they were not conveyed under it. There is hardly room for argument upon this question, in the light of the undisputed facts that the land was held, occupied, and used by IT. C. Ellis throughout the ten years after the making of the contract and the commencement of this action without a claim of ownership by the land company; that no transfer by deed was made or called for under this contract, and the fact, admitted by Charles L. Allen, who was the sale manager and active agent of the land company, and who acted for it in the negotiations resulting in this contract, that he did not consider this land to be the property of *J. F. Filis*when the contract was made. The facts established by the evidence abundantly support the conclusion of the court on this question.

It is contended that, if it be held that the title to this land is in *J. F. Ellis*as grantee in fee under the deed from Moore, then H. C. Ellis, his father, has acquired such title by adverse possession of the land. The father’s uninterrupted possession and use of the lands for the period of twenty-seven years is admitted. The evidence also shows that he went into possession with the consent of his son and under an agreement to occupy and cultivate the farm for his own benefit, and with the further agreement that the title should be in the son. This possession and use continued under this arrangement up to the time of his death. Nothing indicates that there was any change in the character of the father’s possession. The facts necessary to show a hostile possession do not appear. In so far as the proof characterizes the possession, it is to the effect that the father held and occupied the land under the *575legal proprietor, and that he never claimed or asserted occupancy or possession other than in subordination and subservience to the legal title. Ho grounds are established upon which •a claim of adverse possession by the -father can be based.

Eespondent presented arguments upon a number of questions not covered by the court’s findings and judgment. It •does'not appear that they were considered upon the trial; there were no requests presented to the lower court to find on them, nor are they covered by any exceptions preserved in the record. Under these circumstances we do not feel called upon to consider these questions on this appeal.

*By the Gourt.*— The judgment is affirmed.