Hall and husband vs. The City of Racine. stance than are required to pass it over the mayor's objec- The learned counsel for plaintiffs, in their very able argument, refer to the analogy between the veto power conferred upon the mayor by the city charter, and that conferred upon the governor by the constitution. No doubt such analogy exists. Counsel also refer to the provision in the constitution to the effect that on the passage of appropriation bills and certain others, the yeas and nays shall be called in each house, and that three fifths of all the members elected to each house shall be required to constitute a quorum therein. Art. VIII, sec. 8. They argue that the rule of construction above suggested would render it unnecessary to present Hall and husband vs. The City of Racine. such bills to the governor for his approval. The two cases are not analogous. The constitution only requires the affirmative votes in each house of two thirds of the members present to pass a bill over the executive veto. Const. art. V, sec. 10. This presupposes, however, the presence of a quorum in each house. For the passage of appropriation and other bills enumerated in sec. 8 of art. VIII, sixty members constitute the smallest quorum of the assembly, and twenty of the senate. Hence, when only a bare quorum of each house is present, bills specified in sec. 8, art. VIII, may be passed over the executive veto by an affirmative vote of forty in the assembly and fourteen in the senate. When both houses are full, such bills may be passed over the executive veto by an affirmative vote of sixty-seven in the assembly and twenty-two in the senate. Now, if the constitution contained a provision that, on the passage of an appropriation bill, the question shall be taken in each house by yeas and nays, which shall be duly entered on the journal, and an affirmative vote of three fourths of the members elected to each house shall be required to pass the bill,- that is to say, seventy-five affirmative votes in the assembly and twenty-five in the senate,the provision would be analogous to that in the charter of Racine under consideration, in that it would be inconsistent with the veto power conferred by sec 10, art. V, of the constitution, and would render the exercise of such power in the case supposed entirely nugatory. We think the approved rules of constitutional and statutory construction would require the courts to hold that the provision above supposed would withhold from the executive the veto power in respect to appropriation bills. However, there is no provision in the constitution which restricts the exercise of that power by the executive in respect to any act of the legislature on any subject, or which is at all analogous in principle to the provisions of the charter of Racine, contained in sec. 6, title VI, thereof, here under consideration. Kinney vs. Dexter and others. It follows that the demurrer to the complaint was properly sustained, and that the order in that behalf must be affirmed. By the Court. Order affirmed. WINSLOW, J., took no part. KINNEY, Appellant, vs. DEXTER and others, Respondents. December 16, 1891 — January 12, 1892. Married women: Deed from husband to wife: Ejectment. A conveyance of land by a husband directly to his wife, upon no other consideration than natural love and affection, vests in her no legal title or right of possession; and her grantees obtain no better title or right, and cannot maintain ejectment for the land. APPEAL from the Circuit Court for Walworth County. Ejectment. The facts will appear from the opinion. For the appellant the cause was submitted on the briefs of S. Bishop, attorney, and E. T. Cass, of counsel. They cited Albright v. Albright, 70 Wis. 535; Hannan v. Oxley, 23 id. 523; McKinster v. Babcock, 26 N. Y. 380; Wheeler & W. Mfg. Co. v. Monahan, 63 Wis. 193; McKesson v. Stanton, 50 id. 306; Cummings v. Friedman, 65 id. 183; Leprell v. Klimschmidt, 112 N. Y. 364; Wis. Cent. R. Co. v. Wis. R. Land Co. 71 Wis. 94; Hewitt v. Butterfield, 52 id. 387. T. D. Weeks, for the respondents, argued, among other things, that a deed directly from husband to wife is void at law. Putnam v. Bicknell, 18 Wis. 333. The statute defining the rights of a married woman over her separate estate does not apply to real estate derived from her husband. Pike v. Miles, 23 Wis. 164; White v. Wager, 25 N. Y. 328. If the purchase was not made with her separate estate she takes no legal estate. Carpenter v. Tatro, 36 Wis. Kinney vs. Dexter and others. 297. In ejectment plaintiff must recover, if at all, on the strength of his own title, and that must be a legal title. Gillett v. Treganza, 13 Wis. 472; Eaton v. Smith, 19 id. 537; Furlong v. Garrett, 44 id. 111-122; Brinkman v. Jones, id. 498-515; Odell v. Montross, 68 N. Y. 499. Plaintiff alleges that he is owner in fee, and sets up no other interest. He must, then, rely upon a fee-simple title. Castor v. Jones, 107 Ind. 283; Barrett v. Hinckley, 124 Ill. 32; Kitteringham v. Blair T. L. & L. Co. 66 Iowa, 280. ORTON, J. This is an action in ejectment to recover the possession of a narrow strip of land on the west side of lot 1, block 1, in Tripp's addition to the village of Whitewater. Both parties claim title from the same source, viz., from one Byron Brown. The plaintiff proved title by successive deeds after the deed of the strip by Byron Brown to his wife, Amelia T. Brown, dated November 25, 1869. The consideration mentioned in the deed is $50, but it was proved that no money or other valuable consideration was paid. The deed was a mere gift, in consideration of natural love and affection. The circuit court directed the jury to find a verdict for the defendants. By proper motions and exceptions the case comes before this court on appeal from the judgment on its merits. To entitle the plaintiff to recover he must show a legal title to the land. Gillett v. Treganza, 13 Wis, 472; Eaton v. Smith, 19 Wis. 537. First. The deed of Byron Brown to his wife, Amelia T. Brown, gave her only an equitable title to the land. Putnam v. Bicknell, 18 Wis. 333; Hannan v. Oxley, 23 Wis. 519. This would give the plaintiff only an equitable title by successive deeds, since conveying only the title Amelia T. Brown had by virtue of said deed from her husband. Second. That deed could not convey to her a separate es VOL 81-6 Taylor vs. The Chicago, Milwaukee & St. Paul R. Co. tate under the statute, for such an estate must come from some person other than her husband. Third. That deed gave her an equitable interest in the strip, as a married woman, leaving the legal title and the possession in the husband. Stræbe v. Fehl, 22 Wis. 337. The wife, not being entitled to the possession by her deed from her husband, could not convey the possession or right of possession to her grantee, and so on to the plaintiff. It follows, therefore, that the plaintiff, having no legal title or right of possession to the strip of land, cannot recover in this action, and the court properly directed a verdict for the defend ants. By the Court. The judgment of the circuit court is affirmed. WINSLOW, J., took no part. TAYLOR, Respondent, vs. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant. December 16, 1891 — January 12, 1892. Railroads: Condemnation of land: Petition by land-owner: Denial of title: Order for payment of commissioners' fees, pending an appeal from their award. In proceedings to condemn land taken by a railway company, instituted by one claiming to be the owner of the land, the company denied the petitioner's title. The court determined that the petitioner had title, and appointed commissioners of appraisal, who awarded compensation to him. The company appealed from such award. Afterwards the court ordered the company to pay forthwith the fees of the commissioners. Held proper, under secs. 1848, 1852, R. S., notwithstanding the pendency of said appeal and the denial of the petitioner's title. WINSLOW, J., dissents. |