89 Wis. 551 | Wis. | 1895
1. The plaintiff’s claim of title is under and in privity with that of his grantor and ancestor, Anton Chloupek; and if the execution and acceptance of a substitute deed, December 4,1861, operated to estop Anton Chlou-pek and those claiming under him from asserting title under the deed of November 10, 1855, from Krajnik and wife, to more of the premises therein described than is included in the substitute deed, then it is clear that the plaintiff failed to show title to the locus in quo, and judgment was rightly given, as will be seen, for the defendant. Undoubtedly, the first deed from Krajnik and wife to Anton Chloupek operated to convey to him in fee all the lands described in it, and the legal title, it may be' admitted, remained in him until it descended on his death to his heirs at law; but he and they may be estopped from asserting title to any of it not embraced in the substitute deed, as against Krajnik and his subsequent grantees, immediate and remote. The grantee in a deed poll, by accepting it, becomes bound by its terms as
2. The plaintiff, in making out his case, gave evidence to show the possession and use of the strip of land constituting the locus in quo by Anton Chloupek and by those claiming under him, insisting upon his right to do so on the ground that he had alleged both title and possession as a basis of recovery, and the defendant insisted that evidence to prove title by adverse user or prescription was inadmissible. The plaintiff’s counsel then stated: “We are not proving title. Ye are proving possession — that is all — under a grant. We found our claim on a grant.” The court suggested that possession would be presumed to follow the legal title until the contrary was shown; whereupon the plaintiff’s counsel stated he would rest, and bring in that testimony in rebuttal. The defendant did not go into the question of possession at all, and the case was closed without other proof on that subject. The evidence produced on the part of the plaintiff tended to show that the strip of land in dispute was used as a roadway, and that the plaintiff and his father had used .and claimed it as such; that they claimed a right of way over it. The first request of the plaintiff was not that the court s'hould find that the plaintiff or his ancestor had ever adversely held the premises,'but that they had had the actual, sole, exclusive, and notorious possession thereof. If such possession was not adverse it would not establish such a right as would entitle him to recover in this action. The second request was to find that the land had been adversely field, occupied, and used as a road to obtain access to other
Judgment was rightly given for the defendant.
By the Oov/ri.— The judgment of the circuit court is affirmed.