56 Wis. 249 | Wis. | 1882
The result of the judgments of this court on! the two former appeals is that if the place where the stake stood which is referred to in Goodsell’s deed to the grantors of the defendants as at the northwest corner of Eowell’s lot can be established, that must control in fixing the line between the lots of the respective parties. But if the place where the stake stood cannot be identified, the plat must control. The last trial of the case appears to have been conducted upon a correct understanding of the former judgments, and the struggle on behalf of defendants was to show that the stake referred to in such deed was located at or very near the west end of the fence mentioned in the same deed as “Eowell’s fence.” Succeeding in that, the defendants would have been entitled to judgment. Failing to identify
It is entirely immaterial who set the stake which the defendants claimed, and the testimony tended to prove, was ■the one referred to in Goodsell’s deed to the defendants’ grantors. The question is, Was that the stake mentioned in the deed? not, Who set it?' Yet the instruction made it necessary for the jury to find that the stake was set by the grantors of the parties, or at least by the defendants or their grantors, before they could find that it was a controlling
Another question, which was raised in the argument of this appeal for the first time (so far as we know) in the progress of the cause, requires notice. Goodsell testified that he first deeded what is known as the Nowell lot to Nowell, who subsequently returned it to the witness, and thereupon (presumably at the request of Nowell) he destroyed that deed, and conveyed the same lot to one Barnard. The latter after-wards conveyed the lot to the plaintiff. On this testimony it is now claimed that the legal title to the lot is still in Nowell, and hence that the plaintiff, whatever his equities may be therein, cannot maintain ejectment for it. It is undoubtedly the law that the voluntary cancellation or destruc
The onus of breaking down the plaintiff’s legal title, thus jorima fade established, being with the defendants, they did not go far enough to accomplish that purpose. Under the registry laws, if the plaintiff took his conveyance from Barnard, paying a valuable consideration therefor, and without notice that the unrecorded deed to Rowell ever existed, the legal title is in the plaintiff. Under such circumstances the Rowell deed is void as against the plaintiff. R. S., 641, sec. 2241. Hence, in addition to proving the execution of the Rowell deed, the defendant was required to prove either that the plaintiff did not pay a valuable consideration for the lot, or, if he did, that he took his deed with notice of the Rowell deed. In a case (if such a case can arise) where it is necessary for the plaintiff, in the first instance, to show that the deed under which he claims is paramount to a prior unrecorded deed, in order to make good his
These observations are made on the hypothesis that there is proper evidence in the case to show the existence of the deed to Rowell. But such is not the fact. Regularly, after proving the destruction of the instrument, its contents should be proved by the best evidence attainable. Here we have proof that Goodsell made a deed of the lot to Rowell. Instead of giving the contents of the instrument, the witness merely states his conclusion of law that it was a deed, and says nothing of the manner of its execution. This is clearly insufficient. ¥e regret that this protracted litigation cannot be terminated now and here. But no alternative is left us. The judgment must be reversed, and the cause remanded for a new trial.
By the Court.— It is so ordered.