Du Pont v. Davis

| Wis. | Jun 15, 1872

Cole, J.

We think the nonsuit in this case was improperly granted.

It is objected that the description of the premises, as given in the complaint, either shows that the land sought to be recovered was not within the jurisdiction of the court, or was so uncertain, that possession of it could not be delivered by the sheriff. The premises, as described in the complaint, were bounded as follows : “ Commencing in the east line of the southeast quarter of section thirty, in township No. 7 north, of range twenty-two west, in said county, at a point nine chains and forty links south of the northeast corner of said quarter section, running thence south along said east line of said quarter section to the center line of Clybourne street produced across said quarter section, thence along the center line of Clybourne street, two chains and fifty links, thence north to a point due west of the place of beginning, thence to the place of beginning.” Now it is said that the lands are described as being in range twenty-two west and that there is no such range in this state. It is admitted that tha’e is a mistake in describing the range as twenty-two west, instead of twenty-two east; but it is said there is a sufficient description of the premises without the range, and, therefore, this erroneous addition may be rejected in conformity to the Yna.vim, falsa demonstratio non nocet. It appears to us that this is a sufficient answer to the objection. The complaint is entitled “ County Court, Milwaukee County.”

The county then, by relation, becomes a part of the description given in the body of the complaint, and shows beyond all question that the land was situated within the jurisdiction of the court. It would seem to be unnecessary to cite authorities in support of so plain a proposition as that the clerical error in writing the word “ west instead of “ east ” must be disregarded wben tbe premises are otherwise sufficiently described as being in Milwaukee county.

But it is further insisted that there is an uncertainty in the description in this: that there is no such street as Clyboume street intersecting the east line of the quarter section mentioned, and that it is not stated whether Clybourne street as produced is to be produced east or west, north or south. A bare reference to the description, however, will show that the street must cross the quarter section in a westerly direction, because a line drawn north from the terminal point of the boundary in the street produced is described as reaching a “ point due west of the place of’beginning." This is all that we deem it necessary to say upon the first three grounds relied on in support of the motion for a nonsuit.

The fourth ground was, “ that the plaintiff had not made sufficient proof of his title to recover.” The plaintiff’s proofs consisted of a deed of the premises from Sylvester Pettibone to Alfred Du Pont, dated April 12, 1848, and recorded June 80, 1848, and a deed from Alfred Du Pont and wife to the plaintiff and Alexis J. Du Pont, “ and the survivor of them," dated Oct. 15, 1855. And it is insisted that there is nothing whatever to show that Pettibone ever had any title to the premises in. controversy. We think it sufficiently appears from the answer that he was the common source of title. The answer in the first place contains the general denial, and as a further defense, claims title to the premises under one Elisha B. Clark, who, she alleges, entered into the possession of the premises on the 18th day of March, 1850,” under claim of title, exclusive of- any other right, founding such claim upon a written instrument, to-wit: a deed from one Sylvester Pettibone and wife, bearing date on that day “ as being a conveyance of fhe premises in question," and claiming title by adverse possession for the period limited by statute. Now it appears to us that these allegations must be deemed to fairly admit that Pettibone once Rad title to the premises, and that Clarlc accepted the deed from him as being a conveyance of them. Persons do not generally accept deeds of conveyance from parties who do not have, or who are not supposed to have, some title or interest in the property which they assume to convey.' And the necessary inference from the answer is, that Clark accepted the deed from Pettibone as conveying the title, and thus, by his conduct, admitted that his grantor had an interest in the property. In other words, we think the answer admits that Pettibone was the common source of title, and the plaintiff was, of course, entitled to the benefit of this admission. But again it is insisted that if the map of the premises was properly in evidence, this shows that the deed to Alfred Du Pont did not describe or embrace the land sued for. To give it that effect, it is said, the description must start where it does in the deed, and the distance, 17 chains and 22 links in the second line, and 17 chains and 95 links in the last line, must be wholly disregarded. "We suppose it to be well settled that courses and distances must yield to fixed monuments and natural objects. Gove v. White, 20 Wis., 425" court="Wis." date_filed="1866-01-15" href="https://app.midpage.ai/document/gove-v-white-6599540?utm_source=webapp" opinion_id="6599540">20 Wis., 425. In this case there is no claim that there is any difficulty in tracing-the government surveys, and in ascertaining the precise place of the quarter section corner. This gives the point from which the northeast corner of the lot can be determined. The second line is to run to the middle of the Menominee river, a well defined natural object, which forms the boundary on the south. And the last course is from the intersection of the middle of that river and the last line of the quarter section north to. the place of beginning. These monuments established by the government surveys, and the Menominee river, must have a preference over the length of the second and fourth lines as given in the deed, and fix the boundaries of the lot conveyed.

The last ground relied upon to sustain the motion for a non-suit was, that it appears by the deed introduced that Alexis- J. Du Pont is a joint tenant of the premises with the plaintiff, and should have been joined as a party plaintiff in the- action. It is claimed on the part of the plaintiff that the defendant having failed to insist upon the non-joinder in her answer, cannot now take advantage of the omission to join the co-tenant. Whether this is a correct position or not, we shall not stop to inquire. Eor assuming that the deed from Alfred Du Pont to the plaintiff and Alexis J. Du Pont, created an estate in joint tenancy, and yet there was sufficient evidence of the death of Alexis to carry the case to the jury upon that question. The witness Gardner, who has been acting as agent for the Du Ponts in selling their powder in Milwaukee since 1858, says that he understands from information received from the family at Wilmington, Delaware, that Alexis was killed by the explosion of a powder mill in 1855 or 1856. In Anderson v. Parker, 6 Calif., 197, it was said that hearsay information of the death of a person, derived from the immediate family of the deceased, was sufficient, prima facie, to establish the fact. See also 1 Green. Evid., section 104; Morrill v. Foster, 33 N. H., 379. Hearsay evidence is admitted in cases of pedigree, and the term pedigree, says Prof. Greenleaf, “ embraces not only descent and relationship, but also the facts of birth, marriage and death, and the times when these events happened. 1 Green. Evi. supra. Upon the evidence of the witness Gardner, the jury might have found that Alexis J. Du Pont was dead, and that the plaintiff took the entire estate by the right of survivorship.

It follows from these views that the judgment of nonsuit must ibe reversed and a venire de novo awarded.

By the Court.— So ordered.