Gove v. White, 20 Wis. 425

20 Wis. 425 | Wis. | 1866

Lead Opinion

Dixon, C. J.

We are all of the opinion that there is no es-toppel growing out of the statement made by the plaintiff to Judge Downer, at the time the judge purchased of Wright in 1854. One essential element of every equitable estoppel, by which a man is to be precluded from claiming what is his own, is that the purchaser and party claiming the benefit of such es-toppel should have been ignorant of the true state of the title. Ignorance of the true state of the title on the part of • the purchaser must concur with wilful misrepresentation or concealment on that of the owner. The purchaser must not only be destitute of all actual knowledge of the true state of the title, but of tbe means of acquiring knowledge by a recourse to tbe record or in any other manner, according to tbe language of many of tbe authorities. See 2 Smith’s Lead. Cas., Doe v. Oliver., — Dutchess of Kingston's Case, Hare & Wallace’s notes, 661-2, and cases cited. Judge Downer was in possession of tbe deed from Gove to Wright, and familiar with its contents. Tbe terms of tbe deed were unambiguous, and tbe rights of tbe parties under it plain and evident. It was in law tbe sole evidence of tbe extent of tbe grant, and whether tbe two acres conveyed were inclusive or exclusive of tbe highways. To tbe deed, therefore, in connection with tbe monuments upon tbe land referred to and identified by it, tbe parties were bound to resort for tbe purpose of ascertaining tbe extent of tbe grant. It seems to us, under such circumstances, that tbe declarations of tbe grantor as to tbe effect of tbe deed or tbe extent, of tbe grant can never operate as an estoppel. If made without fraud and without any intention to deceive or mislead, of which we have no evidence to tbe contrary here, such declarations can amount to no more than an expression of opinion upon tbe legal effect of tbe deed, of which tbe purchaser, with tbe same knowledge of tbe facts, is equally well qualified to judge for himself. Tbe rule of law in such cases is, that both parties must exercise diligence and good faith ; and tbe purchaser must rely upon bis own knowledge of tbe facts, and draw conclusions for himself. He cannot be permitted to say that be was misled or deceived by tbe mistakes or ignorance of tbe grantor. To allow tbe declarations of tbe grantor, in such a ease, to overcome tbe deed and enlarge tbe grant would likewise be in direct contravention of tbe statute of frauds. See Carleton v. Redington 1 Foster, 300.

We come, then, to the construction of tbe deed, tbe effect of which will be readily determined by tbe application of a few familiar rules.

Where tbe boundary is a highway or a river, unless there be some express words in tbe grant limiting tbe boundary to tbe bank of the river, or to the side of the highway, the center of the river ox highway is to be taken as the boundary. Jackson v. Hathaway, 15 Johns., 447; Jackson v. Louw, 12 id., 252; Same v. Halstead, 5 Cow., 216; Ex parte Jennings, 6 id., 518; The People v. Seymowr, 6 id., 579; Luce v. Carley, 24 Wend., 451. In this case there are no express words limiting the grant to the side of the highway. The language of the deed is: “commencing on the road at the northwest corner of section eleven in town six,” &c., “ thence south on the road dividing sections ten and eleven,” &c. It appears from the survey that the corners and dividing lines of sections ten and eleven correspond with the center of the highway. Here then we have the starting point from which the quantity of land is to be measured.

Another rule is, that where there is a known and well ascertained place of beginning, in the description in a deed, that must govern, and the grant be confined within the boundaries given. Jackson v. Wilkinson, 17 Johns., 146; Same v. Wendell, 5 Wend., 142; 8 id., 183.

Still another rule is, that what is most material and most certain in the description of the property granted, has a controlling influence. A river, a known stream, a spring, or a marked tree, will control as to courses, distances and quantities. 1 Cow., 605; 5 id., 371; id., 346; 9 id., 661; 8 Wend., 183. A highway, opened and used as such, is a most material and certain object in the description of land. The same is true of the corner of a section, at which the surveyors of the public lands are required by law to establish a monument.

Here, then, we have two most material and certain and well ascertained objects in the description, showing the place of beginning — the center of the highway as described in the deed, and the corner of the section as established by the public survey. From this well ascertained place of beginning there can be no departure.

Commencing, therefore, at this point, we pursue the description in tbe deed, and run thence south in the center of the highway sixteen rods. In running this line, there being no object or call by which it can be lengthened or shortened, of course the distance specified in the deed must govern, and we must stop with the sixteen rods. From this point eastwardly to tbe stake described as at the southeast corner, a discrepancy arises between the courses and distances named in the deed and those found by actual measurement of the land. The description in the deed is: “thence, at right angles with the said road and parallel with the north line of the aforesaid section, twenty rods, to stake.”. By actual measurement it is found that the “stake” is one and one-half rods south, and something more than two rods east, of the place indicated by the written description. As already observed, course and distance must yield to natural or ascertained objects or bounds called for by the grant. The “stake,” about which there is no dispute, is an ascertained object, which must govern both the course and the distance ; and the south line of the land conveyed will be found by running directly from the center of the highway, at the distance of sixteen rods south of the place of beginning, to the “stake.”

The other boundaries will be readily ascertained. From the “ stake ” north it will be by a line “ parallel with the west line of said section,” only the distance must be lengthened so as to reach the center of the highway on the north.

Upon the question of the supposed estoppel arising from the plaintiff’s having measured the premises with the defendant White, and having informed White there were two acres exclusive of the highway, and White having made valuable improvements upon the portions in dispute, in case the jury should so find, we are not now prepared to express any positive opinion. Mr. White testifies that he has built a barn in part upon the premises in dispute, and planted some trees and shrubbery; but upon what part of the premises we are not informed. These improvements may have been made, for anything we know, upon the strip of land claimed upon the east side, to which. White has title bj virtue of tbe several conveyances from Gove clown to himself; and if so, they can have no influence in determining the plaintiff’s right to recover that portion of the strip on the soirth side not embraced in his grant to Judge Downer. We leave this question, therefore, open for future determination, in case it should become necessary. 'It may be that the same reason for holding that there was no estoppel in the case of Judge Downer, exists in the case of Mr. White also — ■ that his knowledge of the contents of the deeds should preclude him from averring that he was deceived.

Some of the instructions, however, which were applicable alike to both the supposed estoppels, should have been given. The sixth instruction asked by the plaintiff is undoubtedly correct law. Courts will not construe ignorance or misapprehension of the true nature or existence of a right into a forfeiture of the power to enforce it. It must appear that the party to be es-topped was acquainted with his title and wilfully concealed or misstated it, or that he was guilty of such gross negligence and indifference to the rights of others as, under the circumstances, to be equivalent to actual and premeditated fraud. Morris v. Moore, 11 Humph., 433; Tilghman v. West, 8 Ired. Eq., 183; Royston v. Howie, 15 Ala., 309; Parker v. Barker, 2 Met, 423; Watkins v. Peck, 13 N. H., 360.

And with the qualifications as to such gross negligence and indifference to the rights of others as under the circumstances to be equivalent to actual and premeditated fraud, the seventh and eighth instructions asked should also have been given. It must undoubtedly be shown that the language or conduct of the owner was the direct inducement to the person who purchased the land or made the outlay. Morris v. Moore, supra; Morton v. Hodgdon, 32 Maine, 127; Cambridge Institution v. Littlefield, 6 Cush., 210; Darlington's Appropriation, 13 Pa. St., 430; Otis v. Sill, 8 Barb., 102.

It follows from these views that the judgment of the court below must be reversed.

By the Court. — Judgment reversed, and the cause remanded for a new trial according to law.

I)OWNER, J., took no part in tbe decision of this cause.

A motion for a rehearing was afterwards denied.

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Rehearing

Dixon, C. J.

A rehearing has been asked for in this case; and in support of the motion we have been referred to the following general principles, laid down in the case of Pearson v. Baker, 4 Dana, 321:

u First. In the general, distance yields to course; or, in the absence of any circumstances bringing the mind to a contrary conclusion, the courses shall be first pursued, contracting or extending the distance, as the case may require, to make the survey close.

Second. The beginning corner in the plat, or certificate of survey, is of no higher dignity or importance than any other corner of the survey.

Third. The order in which the surveyor gives the lines and corners, in his certificate of survey, is of no importance to find the true position of the survey. Eeversing the courses is as lawful and persuasive as following the order of the certificate.”

Acting upon these rules, and assuming them to be correct and applicable alike to all cases, it is contended that, in commencing at the northwest corner, the starting point named in the deed, and running thence south along the west line, being the center of the road, distance must yield to course, and that the west line must be extended one and one-half rods south, so that the line thence east to the “ stake ” at the southeast corner may be “ at right angles with the said road and parallel with the north line of the aforesaid section,” as described in the deed. Again it is contended, as the “ stake ” at the southeast corner is a call of “ equal dignity ” with the section corners and center of the highways at the northwest, that it is just as lawful, in running out the lines, to commence at the “stake,” and tbat if we do so, and run either west or north by lines parallel with the north and west lines of the sections, and at “ right angles ” from the “ stake,” the description in the deed will include all the land in the possession of the defendant.

The foregoing rules from the case of Pearson v. Balcer, are no doubt correct enough as applied to the facts of that case, but they are not of universal application. The first is properly qualified. In the general, or in the absence of any circumstance bringing the mind to a contrary conclusion, distance yields to course. In this case the intention of the parties to stop at the end of the sixteen rods seems very conclusive. It is so expressly stated in the deed, and that number of rods exactly corresponds with the quantity of land to be conveyed. We held — and the correctness of our ruling in this respect is not controverted — that a proper construction was, two acres inclusive of the land to the center of the highways. It is true that, for reasons sufficiently stated in the opinion, the grantee and the defendant under him actually acquired title to a larger quantity; but that affords no ground for disregarding the clear intention of the parties as to the length of the west line. The language of the deed is plain and unambiguous in this particular, and that must govern. Besides, it is extremely doubtful .whether the rule is to be applied so as to lengthen or shorten the distance upon one line in order merely to change or conform to the course or angle of another line.

The second and third rules are not to be received without qualification. In this respect they are defectively stated. It is not universally true that the beginning corner in a certificate of survey or description is of no higher dignity or importance than any other corner; nor is it true that the order in which the lines are given by the surveyor or in the deed may always be disregarded. The authorities cited in the opinion are clear upon these points. We quote from the opinion of the chancel lor in Wendell v. The People, 8 Wend., 189, where the rules are given with the necessary qualifications. The chancellor says: “ Where tbe courses, distances and quantity of land contained in a grant correspond with tbe natural or artificial monuments or boundaries referred to in tbe description of tbe premises, there can be no difficulty in making a practical location of tbe grant; and it makes no difference at wbat angle of tbe premises tbe surveyor begins, or whether be runs backward or forward, provided be reverses tbe points of compass when be runs around tbe land in a different direction from that described in tbe grant. But when a practical location of tbe premises cannot he made to correspond with all tbe calls in tbe grant, certain legal rules must be observed as to rejecting some calls and retaining others; and it also-becomes necessary to run around the premises in the direction indicated by the description in the grant, especially where some of the angles of the lot are not marked by natural or artificial monuments." Tbe facts of this case bring it fully within tbe qualifying circumstances stated by tbe chancellor, and show that neither tbe beginning corner nor tbe direction indicated by tbe description can be disregarded in ascertaining tbe location of tbe premises conveyed. We think, therefore, that there is no error in the opinion, and that the motion for a rehearing must be denied.

By the Court. — Motion denied.