Gibson vs. Gibson and wife. evidently the theory of the defense. Coming down to September 2d, we find the sale still uncompleted, and the Middlewood mortgage, now amounting to $1,900, still unpaid; and upon this day we find that George and Mark Gibson give their notes to Middlewood for $1,900, secured by a mortgage on the land in question, except the east fifty acres thereof; and on the same day Middlewood discharges the previous mortgage, and the administrator's deed is finally acknowledged, but not placed on record until September 19, 1872. Thus, it stands established that the sale was not finally completed until as late as September 2d, and then it was completed by the giving of the notes of George and Mark for almost half of the purchase price, secured by mortgage on the west half of the land. On the 28th day of the following month, George deeds the east forty-five acres of the land to the defendant. This situation of affairs seems to us to call for the most clear and convincing explanation. Having advanced one fourth of the purchase price in securities and become security for nearly one half by his signature to notes, he appears, within two months after the execution of the deed, as the owner of one half of the land. These suspicious and suggestive circumstances are not satisfactorily explained. We have carefully examined the evidence of the defendant, and find it vague and contradictory, and in some instances absolutely contradictory of the records. For instance, he denied giving a mortgage to Hastings until after the deed was given to George Gibson, and could not think how the Hastings mortgage was paid, and denied giving any mortgage at all to Hastings to take up the Pearson Gibson mortgage. His testimony as to how George Gibson paid for the property is unsatisfactory to the last degree. At one time. he says that it was paid in money, then in mortgages and other shapes, but he cannot specify a single payment that George made at any time.. Carefully as we have considered the testimony, we think it entirely fails to show that this Gibson vs. Gibson and wife. administrator came into possession of nearly one half of his intestate's estate rightfully. The inferences of direct or indirect interest on his part in the transaction which begin with the giving of the Hastings mortgage, June 4, 1872, and end with the deed of half the land to him October 28th in the same year, are too strong and convincing to be overcome by the vague and contradictory general statements which we find in the testimony. Thus, we find ourselves unable to agree with the findings of the circuit judge to the effect that the defendant Mark was not directly or indirectly interested in the sale of the land, although we do not think that actual or intentional fraud on his part was proven. But a difficulty here arises which bars the plaintiff's` recovery in ejectment. The principle is familiar that in ejectment the plaintiff must recover on the strength of his own title. As has been previously pointed out in this opinion, it has been held by this court that an administrator's sale of land, in which the administrator is himself interested, is not absolutely void, but voidable only at the election of the persons entitled to avoid it. Melms v. Pabst B. Co. 93 Wis. 153. It follows from this that the defendants have legal title to the lands in suit until such title is set aside in some proper action. Until such setting aside of the sale, the plaintiff cannot maintain the purely legal action of ejectment, because, on his own showing, the defendants still have the title. Yeackel v. Litchfield, 13 Allen, 417. In harmony with this doctrine, it has been held in this court that where the defendant has the apparent legal title of record, and the facts which make that title inequitable or fraudulent as to the plaintiff are not of record, an equitable action is the proper action in which to obtain an adjudication of the plaintiff's rights. Prickett v. Muck, 74 Wis. 199; Spiess v. Neuberg, 71 Wis. 279; Burrows v. Rutledge, 76 Wis. 22. In such equitable action, if it should appear that there was constructive fraud, only, on the part of the defendants, a court The State ex rel. Hartung vs. City of Milwaukee. of equity can and will fix terms upon which the conveyance will be set aside. Cook v. Berlin W. M. Co. 56 Wis. 643, and cases there cited; Yeackel v. Litchfield, supra. Compare Hawley v. Tesch, 88 Wis. 213. We do not see how this can be done in an action at law, even under the betterments statute. We are aware that in McCrubb v. Bray, 36 Wis. 333, a recovery in ejectment was sustained in an action brought by the heir against an administrator who had purchased at his own sale; but the point was nowhere raised in the case, and the statute had not then been construed to mean that such a sale was voidable only, so we do not consider the question as settled in that case. It follows that, although we disagree with the circuit judge as to the question of interest on the part of the administrator in the sale, still the judgment must be affirmed, because the evidence shows that the title to the lands in question is still in the defendants, and must be avoided, if at all, in an action in equity. By the Court.-Judgment affirmed, without prejudice to the right of the plaintiff to bring an equitable action to avoid the defendants' title as indicated in the opinion. BARDEEN, J., took no part. THE STATE EX REL. HARTUNG, Appellant, vs. CITY OF MILWAUKEE, Respondent. February 25,- April 4, 1899. Public nuisance: Injunction: Who may bring action: Appeal: Under taking. 1. An action in the circuit court to enjoin the continuance of a public nuisance must be instituted by the proper law officer of the state, and that court has no power to authorize a private relator to act pro hac vice as such officer. State ex rel. Lamb v. Cunningham, 83 Wis. 90, distinguished. The State ex rel. Hartung vs. City of Milwaukee. 2. Such an action, when instituted by a private relator in the name of the state, is not an action brought by the state, and an effective appeal therein cannot be taken by the relator without the giving of an undertaking. APPEAL from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge. Appeal dismissed. The relator is chairman of the board of supervisors of the town of Wauwatosa, and a member of the board of health of said town. Before bringing this action, he applied to the attorney general, requesting him to bring suit in the name of the state, in the circuit court for Milwaukee county, to enjoin the city of Milwaukee from depositing its garbage on lands in the town of Wauwatosa. The attorney general denied the request, whereupon the relator, upon notice to the attorney general, applied to the circuit court for Milwaukee county for leave to prosecute this information in equity in the name of the attorney general and on behalf of the state, which leave was granted. Thereupon the summons and complaint in this action were served upon the city. In the complaint the relator claims to sue on behalf of the state and in the name of the attorney general, and informed the court that the city of Milwaukee was depositing 100 loads of garbage per day upon certain premises in the town of Wauwatosa, immediately adjoining highways, and leaving the same there to the depth of eight or twelve inches, and that there was emitted therefrom stenches and smells deleterious to the public health, and that the same was in contravention of a valid ordinance of the town of Wauwatosa; and a perpetual injunction was demanded. The city appeared in the action, and admitted that it was depositing garbage upon the premises named, and alleged that the same was deposited in trenches, and was immediately covered over with dirt, and constituted no nuisance nor menace to the public health. The State ex rel. Hartung vs. City of Milwaukee. The case was tried by the court, and a large amount of testimony of citizens and experts was taken. The court found that the garbage was immediately covered with dirt, and created no nuisance, and was not deleterious to the public health, and denied the application for an injunction, and rendered judgment against the relator with costs. The relator gave notice of appeal from this judgment, but gave no bond upon such appeal. N.S. Murphey, for the appellant, contended, inter alia, that it is settled law, both in this country and in England, that the attorney general, or a private relator, may maintain an action in the name of the state to enjoin the erection or continuance of public nuisances. State v. Carpenter, 68 Wis. 172; 2 High, Inj. §§ 1303, 1304, 1554; Bell v. Platteville, 71 Wis. 147; Attorney General v. Railroad Cos. 35 Wis. 526; People v. Vanderbilt, 26 N. Y. 287; S. C. 28 N. Y. 396; S. C. 38. Barb. 282; State ex rel. Little v. D. & S. E. R. Co. 36 Ohio St. 434; People v. Miner, 2 Lans. 396; Attorney General v. Richards, 2 Anst. 603; People ex rel. Teschemacher v. Davidson, 30 Cal. 379; Attorney General v. Steward, 21 N. J. Eq. 340; Attorney General v. Cohoes Co. 6 Paige, 133; Corning v. Lowerre, 6 Johns. Ch. 439; 2 Story, Eq. Jur. §§ 921, 922; Davis v. New York, 2 Duer, 663; S. C. 14 N. Y. 526; State v. Saline Co. Court, 51 Mo. 350; State ex rel. Cramer v. Hager, 91 Mo. 452; Rowe v. Granite B. Corp. 21 Pick. 344. For the respondent there was a brief by Carl Runge, city attorney, and C. II. IIamilton, of counsel, and oral argument by Mr. Hamilton. WINSLOW, J. This is avowedly an action in equity to perpetually enjoin the continuance of an alleged public nuisance. The relator, Hartung, does not claim that he has suffered any "private or special injury peculiar to himself," but explicitly states that the nuisance is a public one, and that he claims the right to maintain this action on behalf of the state, |