Opinion
June 4, 1953 —
July 3, 1953.
APPEAL from an order of the county court of Langlade county, upper municipal branch: THOMAS E. McDOUGAL, Judge. Reversed.
For the appellant there was a brief by Foley Foley, and oral argument by Rex Capwell, Jr., all of Racine.
For the respondents there was a brief and oral argument by Arthur H. Strochan of Antigo.
Action begun September 22, 1952, by Milton J. Olsen and Sally A. Olsen, his wife, against Percival W. Ortell, Thomas F. Burman and Mary J. Burman, his wife, and Katherine A. Ortell and First National Bank Trust Company of Racine, Wisconsin, a corporation, guardian of Katherine A. Ortell, incompetent.
The plaintiffs sold to the defendants Percival W. Ortell, Thomas F. Burman and Mary J. Burman, his wife, on a land contract, certain lands in Langlade county. Said defendants being in default, the plaintiff s now seek to recover the amount due upon said land contract, together with interest; or in default of such payment demand that said defendants and all persons claiming under them be forever barred and foreclosed of all rights in said lands. Katherine A. Ortell never occupied the lands as her homestead.
Defendant Katherine A. Ortell, by her guardian, demurred to the complaint on the grounds that it did not state sufficient facts to constitute a cause of action against her. The court held that said defendant was a proper party to the action and overruled the demurrer. Katherine A. Ortell, by her guardian, appeals.
The facts alleged in the respondents' complaint and admitted by appellant's demurrer show that Katherine A. Ortell never had and that she does not claim to have an interest adverse to the plaintiffs arising out of the contract which is the basis of this litigation. She was in no sense of the word a party to the transaction, and as her husband's interest or rights under the contract never ripened into an estate of inheritance, his wife, Katherine Ortell, appellant, has no right or claim under the facts here that would make her either a necessary or a proper party to the action for strict foreclosure of a land contract not signed by her.
Appellant's husband joined with Thomas Burman and Mary J. Burman, his wife, in an agreement to purchase real estate. Under the terms of the contract, the buyers agreed to hold the land as tenants at sufferance, subject to be removed as tenants holding over by process whenever default occurred. The buyers were in default at the time the action was commenced.
The complaint does contain an allegation that the appellant has or claims to have some lien upon the property. However, because the true facts as in the complaint set forth show she cannot be the beneficiary of any claim arising from a lien, and because, as said in Inglis v. Fohey, 136 Wis. 28, 33, 116 N.W. 857, with reference to dower of a wife, she "had no inchoate dower right, because her husband had no title, legal or equitable, at the time he made the contract with the plaintiff, but only a mere contract right to purchase," it would of course follow that the husband's default could be of no advantage to her. It also follows that the allegation that appellant Katherine A. Ortell has or claims to have a lien on the property is not founded upon fact and cannot be considered as other than a conclusion of law, for "a demurrer to a complaint admits all the facts therein well pleaded, but it does not admit erroneous conclusions drawn from such facts by the pleader even though the conclusions bear the semblance of statements of fact." Northwestern Mut. L. Ins. Co. v. State, 173 Wis. 119, 125, 180 N.W. 138.
Since the husband in this case had only a contractual right based on his individual interest in a contract, and since he was in default, his wife has no interest arising here out of her rights in dower or otherwise. Thus, the sole question presented on this appeal, whether a wife may be joined with her husband as a party defendant in an action for strict foreclosure of a land contract not signed by her, no title having matured in her husband's favor, must be answered in the negative.
By the Court. — Order reversed and cause remanded.