The following opinion was filed September 11, 1945: The appellant's principal contentions on the motion for rehearing are that the decision is contrary to two prior decisions of the court. One of these is that the opinion, which bases the decision on the fact of adverse possession by the plaintiffs up to a line accepted and acquiesced in by the parties as the boundary between adjacent properties, is contrary to Lake Geneva Beach Asso. v. Anderson,246 Wis. 596, 18 N.W.2d 493. That this case is not in point appears from par. 2 of the syllabus which expressly excludes from the rule of the case as to boundaries cases in which adverse possession has been maintained for the prescriptive period.
The other case relied on is Bank of Eagle v. Pentland,197 Wis. 40, 221 N.W. 383. The last sentence of the opinion in this case states that "The sheriff's deed [in a foreclosure case] cannot perform this function [of tacking successive *Page 252b possessions] because of the fact that the mortgage upon which it was based did not cover the land here in question." This case also is not in point because no privity existed between the successive occupants of the land involved (opinion, p. 42), and because the evidence showed "simply occupancy" (opinion, p. 41). Here privity did exist and the evidence showed more than "simply occupancy." The evidence showed the circumstances under which adverse possession commenced and was maintained. It also showed that the defendant Florence Tracy herself acquiesced in the boundary derived from the acts of the abutting owners relating to the Sturm barn by advertising the parcel for rent by her as receiver in the partition suit as comprising the garage occupied and kept by Menzner.
It is urged in this connection that after the death of Mrs. Peske the relation of landlord and tenant existed between Mrs. Tracy as landlord and Mr. Menzner as tenant; that sec. 330.11, Stats., which provides that a tenant's possession is deemed to be that of the landlord for ten years after the tenancy terminates prohibits Menzner from claiming adverse possession until he took the sheriff's deed in 1939 which terminated his tenancy, and hence the prescriptive period required to give Menzner title by adverse possession has not run. This relation is claimed to have existed from the death of Mrs. Peske in 1938 to the receipt of the sheriff's deed by Menzner because Mrs. Tracy is one of the eight children to whom Mrs. Peske bequeathed and devised, in the language of her will "all my [her] estate." Conceding that Mrs. Tracy was thus the owner of a one-eighth interest in the strip in dispute during the interim stated, she was also the owner of the south ninety feet of lot 2 which comprised the strip. Her title thereto came through the death of her husband in 1942, who under the Hackl deed was joint tenant with her. Warren Menzner claims to have acquired by adverse possession the entire title to the strip that passed to Mrs. Tracy on the death of her husband, not the title *Page 252c to a one-eighth interest therein that passed to her under the will. The latter title passed to Menzner under the sheriff's deed in the partition suit. The former title claimed to have been acquired by adverse possession is the title vested by the Hackl deed and was acquired by adverse possession just as effectively as it would have been had it been in Mrs. Tracy's husband alone. The statute is merely in aid of the rule of law that a tenant cannot dispute his landlord's title. The relation of landlord and tenant existing between Mrs. Tracy and Menzner was in connection with the title to lot 1. The Menzners do not dispute that title, but are relying on it. The statute therefore does not apply to the instant situation.
It is also claimed that the strip of land in controversy is a part of the Tracy homestead and that sec. 235.01, Stats., provides that the title thereto could only be acquired by an alienation participated in by both husband and wife. The language of the statute relied on is that "no mortgage or other alienation by a married man of his homestead . . . by deed or otherwise, without his wife's consent, evidenced by her act of joining in the deed, mortgage or other conveyance, shall be valid or of any effect." The word "alienation" as here used means a transfer by the husband by some form of written conveyance signed by the wife. This is indicated by the caption to ch. 235, Stats., "Alienation by Deed," and also by the phrase "evidenced by her [the wife's] act of joining in the deed, mortgage or other conveyance." Here the strip was not transferred by deed. Alienation of real estate is the transfer of the ownership of it by the owner "either by bargain and sale, or by some conveyance, or by gift or will." 3 Words and Phrases (perm. ed.), 99, 100, and cases cited. Cases of "alienation of homestead" are stated in 3 Id. 108. They all refer to some form of written transfer by the husband.
Counsel complain that the court did not consider specific points made by the appellant in her brief and argument. These *Page 252d points go to items of evidence rather than the questions of ultimate fact of adverse possession submitted to the jury. We stated in the opinion that we consider that the answers of the jury to these questions are supported by the evidence, and we think this was sufficient without referring to items of evidence except such as we considered were controlling in support of the jury's finding, although our statement of these items was meager. We did not fail to consider the omitted items. The jury might give them only such weight as they deemed them entitled to in determining the question submitted to them and we must assume that they gave them such weight.
By the Court. — The motion for rehearing is denied with costs to the respondent. *Page 253