Martin, by guardian ad litem, vs. Morris. STATEMENT OF ACCOUNT. Year. Rents. Expenses. Balance. Interest. Amount. We find a statement of the account in the brief of counsel for the plaintiff, which, in the main, is correct. The following corrections have, however, been made therein: A charge of $75 in 1873 for rent to Reckard is stricken out, because the defendant testified he did not collect it. A grading tax for $145, inserted therein as without date, is allowed as of 1876. The rent to John Colle, charged in the account of 1880 at $300, is reduced to $150, on the plaintiff's testimony that the store stood idle a portion of the year. Also, $35 is allowed in that year for the expense of dispossessing a tenant who refused to pay rent. It will thus be seen that the net amount of rents and profits, which was $3,000, allowed by the circuit court, is not too large. After a careful consideration of the whole case, aided as we have been by the very able arguments of the respective counsel, we find no reasons for disturbing the judgment of the circuit court. By the Court. The judgment is affirmed. VOL. 62-28 Hoffman and others vs. Wheelock and others. HOFFMAN and others vs. WHEELOCK and others. February 6- March 3, 1885. (1) Appeal to S. C.: Frivolous demurrer. (2) Administrator's deed: Fraud: Cloud upon title. (3–5) Misjoinder of causes of action: Injunction: Who may demur. 1. An order striking out as frivolous a demurrer to the complaint and allowing the defendant to answer upon the usual terms will not be reversed unless the demurrer was well taken. 2. An administrator's deed, though fraudulently given, is prima facie evidence of the regularity of the proceedings prior to the sale and creates a cloud upon the title of the heirs. 3. A cause of action against an administrator and others growing out of a fraudulent sale of land by the administrator, and a cause of action against the administrator alone for waste committed prior to the sale, cannot be joined. 4. But if no separate judgment is asked against the administrator for damages on account of the waste, the allegations relating thereto may be proper as bearing upon the right to an injunction restraining further transfers of the land; and in any case the misjoinder should not prejudice the right to such injunction. 5. The administrator, as well as the other defendants, may demur to the complaint on the ground of such misjoinder, although if he were the sole defendant the causes of action might be joined. [Whether all the defendants may demur jointly, is not determined.] APPEALS from the Circuit Court for Douglas County. The facts will sufficiently appear from the opinions. The defendants appealed from an order striking out a demurrer to the complaint, and from an order refusing to set aside a temporary injunction. For the appellants there were briefs by Iliram Hayes, attorney, and Pinney & Sanborn, of counsel, and the cause was argued orally by Mr. Pinney. For the respondents there were briefs by John M. Olin and Edward P. Vilas, and oral argument by Mr. Vilas. The following opinion was filed upon the first appeal: Hoffman and others vs. Wheelock and others. TAYLOR, J. This is an appeal from an order of the circuit court striking out the demurrer of the defendants to the complaint in the action as frivolous. The demurrer stated three grounds: (1) A defect of parties plaintiff, and a misjoinder and improper joinder of parties plaintiff; (2) That several causes of action have been improperly united; (3) That the complaint does not state facts sufficient to constitute a cause of action. The learned counsel for the appellants do not undertake to sustain the first ground of demurrer above stated, even against the charge of frivolousness; but as to the other grounds, they not only undertake to sustain them against that charge, but insist that they are well taken, and should have been sustained by the court. After reading the elaborate argument made by the learned counsel for the appellants in support of the third ground of demurrer, we think we would hesitate to declare that it was frivolous. That question is not, however, before this court. Upon an appeal from an order striking out a demurrer as frivolous, which order also allows the defendant to answer upon the usual terms, this court has established the rule that the order will not be reversed unless the demurrer be in fact well taken. The rule is based upon the fact that under the statute the party may have the same relief, by permission to answer, as he would if his demurrer had been overruled upon its merits. When, therefore, the court striking out the demurrer grants the same relief that would be granted on overruling the same upon argument, to reverse such order upon an appeal to this court, when it is evident such demurrer must be overruled upon its merits, could only have the effect to protract litigation at the expense of both parties, without the possibility of any beneficial result to either. Sec. 2681, R. S.; Diggle v. Boulden, 48 Wis. 477, 482; Lerdall v. Charter Oak L. Ins. Co. 51 Wis. 426, 430; Magdeburg v. Uihlein, 53 Wis. 165; Krall v. Libbey, 53 Wis. 292, Hoffman and others vs. Wheelock and others. 295. In considering the demurrer of the appellants to the complaint, we must proceed as though the sufficiency of the demurrer was the only question before us. We will first consider the third ground of demurrer, viz., that "the complaint does not state facts sufficient to constitute a cause of action." The cause of action clearly intended to be stated in the complaint is substantially as follows: The plaintiffs are the heirs at law of Sextus Hoffman, deceased, who died intestate in September, 1873; that at the time of his death he was the owner of certain real estate, described in the complaint, situate in the county of Douglas, in this state, giving the value thereof; that Leonard F. Wheelock was duly appointed administrator of the estate of said Hoffman, June 7, 1875; that he caused an inventory and appraisement of said estate to be made; that he petitioned the county court of Douglas county for leave to sell the real estate of the deceased to pay the debts of the deceased, and that he obtained a pretended license from said court to sell the same, but which, it is alleged, was void, because not signed by the county judge; that by virtue of such license he pretended to sell said real estate; that he made a report of sale to said court, which court, on August 3, 1880, confirmed said sale, and directed said Wheelock, as such administrator, to convey such real estate to the purchaser at such sale; and that on the 26th day of August, 1880, said Wheelock, as such administrator, executed a deed for said real estate to Henry L. Woodard, which was duly acknowledged and recorded in the office of the register of deeds of said county of Douglas on the 26th day of August, 1880. The complaint also alleges that Woodard and wife, by Leonard F. Wheelock, his attorney in fact, conveyed all the lands described in the deed of Wheelock as administrator to Woodard, to Hamilton Peyton, of Minnesota, August 25, 1882, which deed was also duly recorded in the office of the register of deeds of Douglas county, for the nominal Hoffman and others vs. Wheelock and others. consideration of $10. pretended sale of said F. Wheelock leased some part of said real estate to the defendant J. A. Hall, and that Hall sublet the same to the defendant E. H. Badgero, who was in possession as tenant of Hall at the time of the commencement of the action. There are numerous allegations in the complaint of fraud on the part of Wheelock as administrator of said estate, and in the pretended sale of such real estate, which, if true, clearly show that the pretended sale to Woodard was a sham; that the title of Woodard, if he obtained any by such sale, was held by him in trust for said Wheelock; that Woodard never paid anything for said lands; that the conveyance from Woodard to Peyton was without any consideration; that if the title ever vested in Peyton under said deed, it was held in trust for Wheelock; and that Woodard, Peyton, and the tenants had full knowledge of the fraudulent character of the pretended sale made by Wheelock. The complaint also charges that the proceedings and sale were void because the license to sell was not signed by the judge of the court, and because no guardian ad litem was appointed by the county court for the minor heirs of the deceased, on the hearing of the petition for sale. And it further alleges that since the lands to Woodard, the said Leonard It is unnecessary to a full understanding of the case to state more particularly the facts alleged, showing the fraudulent character of the whole proceedings on the part of Wheelock as administrator, as it is not seriously contended on the part of the appellants that the facts alleged in the complaint are not sufficient to avoid the sale and administrator's deed, as well as the conveyances to the other defendants. The point made by the learned counsel for the appellants upon this ground of demurrer is that the facts alleged by the complaint show that the administrator's deed is absolutely void, and is therefore no cloud upon the title of the plaintiffs; and not having alleged facts showing them |