79 Wis. 211 | Wis. | 1891
The questions arising in this case grow out of a foreclosure action brought by the plaintiff and appellant against the' respondent and the other pei’sons named to foreclose a mortgage. The mortgage sought to be fore
This deed was duly recorded in the proper register’s office on the 10th of April, 1884. She also set forth in her answer that at the time of and ever since the execution of said deed to her said son she was, and since has been, in the actual possession of said acre of land, and the buildings thereon, and is still in the possession of the same; and she further alleges in her complaint that the acre of land* with the Buildings thereon, excepted in her said deed, and which she has always occupied and still occupies, is bounded as follows: “ Beginning at the boundary line of the highway which runs along the south side of said southwest quarter of the southwest quarter of section nine (9) aforesaid, on the line of division between the southwest quarter of the southwest quarter, and the southeast quarter of southwest
On the trial the plaintiff offered in evidence his note and mortgage, and made the computations of the amount due thereon, and in addition to such evidence he did in open court “ release all claims whatever to one acre from the southeast corner of the southwest quarter of the southwest quarter of section nine (9), town thirty (30), range six (6), in Chippewa county, Wisconsin, and the buildings thereon, and consents that whatever judgment is rendered in the actions shall so declare,” and rested his case; and thereupon Rose Medley was called as a witness in her own behalf. The plaintiff then objected to any evidence under the answer of defendant Rose Medley, upon the ground that the
After hearing the evidence, the court made the following findings of fact and conclusions of law: The 1st, 2nd and 3rd findings relate to the mortgage, and the amount due thereon. The court then makes the following findings:
“ (4) That the said defendant Richard P. Medley derived his title to the mortgaged premises from defendant Rose Medley, under a deed executed by said Rose Medley several years prior to the execution of said mortgage, and also recorded in the office of the register of deeds, Chippewa county, Wis., prior to the execution of said mortgage; that in said conveyance said lands are described as follows: ‘ The west half of the southwest quarter of section nine (9), town thirty (30), range six (6), except one acre from the southeast corner of the southwest quarter of the southwest quarter of said section, town, and range, together with the buildings thereon; ’ that at the time of the making of said conveyance there was a dwelling-house, and some outbuildings used in connection therewith, located near the southeast corner, and the said Rose Medley was in .the actual possession of said tract of land, and residing in said dwelling-house ; that during all the time after the making of said conveyance, up to the present, said Rose Medley has continued to reside in said dwelling-house, and used said outbuildings in connection therewith.
*216 “ (5) That at the time of making of said conveyance to Richard P. Medley there was, and ever since has been, a strip of land two rods wide off from the south side of said described land, constituting part of the public highway, and that said land, as used and occupied by said Rose Medley, was bounded on the south side by said highway.
“ (6) That a square acre laid off from the southeast corner' of said land would not include the said dwelling-house; and that an oblong square acre laid off from said corner, having for its southern boundary the center of said highway, would include said dwelling-house, but would not include' all the other buildings referred to as used in connection therewith; but an acre so laid off from said corner, excluding the highway, that is, taking for the corner the point where the east boundary of said land intersects with the highway, would include all of said buildings; said acre would be sixteen rods long on the south boundary, and ten rods wide on the east boundary.”
And as conclusions of law the court finds as follows :
“ (1) That said conveyance from Rose Medley to Richard' P. Medley should be construed with reference to the circumstances attending the transaction, the situation of the parties, state of the property, the location of said dwelling-house, and other buildings, and the existence of the highway ; and, having regard for these circumstances, the court holds that it was the evident intention of the parties, by the language used in said .conveyance, that the acre excepted should be laid off from the southeast corner of said west half of the southwest quarter in said section nine (9), excluding the highway, so as to include said dwelling-house and said outbuildings used in connection therewith as the same were located at the time of the execution of said conveyance, which said acre, as near as can be determined from the testimony, is bounded as follows: Beginning at a*217 point where the east boundary line of the southwest quarter of the southwest quarter of section nine (9), town thirty (30), range six (6), intersects with the highway on the south side of said land; thence west along the said highway sixteen rods; thence, at right angles, north ten rods, to the said east boundary line of said land; thence at right angles south to the place of beginning.
“ (2) That plaintiff is entitled to judgment as prayed for -in the complaint, except that said judgment should provide only for a sale of the west half of the southwest quarter of said section nine (9), excepting one acre from the southeast corner thereof, described as aforesaid.”
The plaintiff excepted to the conclusions of law, but took no exceptions to- the findings of fact. The learned counsel for the appellant assigns two errors: First, that it was error to permit the defendant Eose Medley to introduce any evidence under her answer, on the ground that it does not state facts constituting a defense to the plaintiff’s action, or to any part thereof; second, that the court erred in permitting parol evidence to aid in construing the deed given by the said defendant to her son. He also assigns as error the allowance of costs to the respondent.
The first objection, that the answer does not constitute a defense to the plaintiff’s action, or any part thereof, cannot be sustained under the rule established by this court in Wickes v. Lake, 25 Wis. 71; Roche v. Knight, 21 Wis. 324; Newton v. Marshall, 62 Wis. 8, 17. These cases hold that when the plaintiff, in a foreclosure action, makes any person defendant, alleging “ that he claims to have some interest or lien upon the mortgaged premises or some part thereof, which lien, if any, has accrued subsequently to the time of said mortgage,” such defendant may by his answer set up a paramount claim to the mortgaged premises, or to some part thereof, and that such right may be tried and adjudged in the foreclosure action. This rule is certainly the correct
The learned counsel also insist that the court erred in permitting respondent to introduce parol evidence of the situation of her buildings in the southeast corner of said west half of the southwest quarter, mentioned in ber deed to her son, for the purpose of locating the acre of land so excepted from her deed; the claim being that the éxception in the deed is the exception of an acre in the southeast corner in the form of a square, and that parol evidence is inadmissible to show that any other form was intended by the parties. The rule contended for by the learned counsel is undoubtedly the correct rule when there is nothing else in the deed which calls for a different form. But the rule does not apply to a case when the exception is of a certain quantity of land, and the exception, from the tract described in the conveyance, refers to other objects than mere locality. It is not denied by the learned counsel that, if the exception had been of one acre in the southeast corner of the tract conveyed, including the grantor’s dwelling-house situated thereon, that evidence would not be admissible to
But the learned counsel insists that an acre in a square form will cover all the material calls for boundary mentioned in the deed, because the evidence shows that an acre, in a square form, will include some of the buildings of the defendant situate in the southeast corner of the land described in the deed. That fact we do not think meets the call for the buildings evidently intended by the parties to the deed. Such acre would not include the defendant’s dwelling-house, which was evidently fa£ the most valuable building situate on the southeast corner of the land described in the .deed; and that fact, with the other evidence introduced, -raises a fair presumption that that building, of all others, was the one intended by the parties as one of the buildings which they intended the excepted acre should include.
It is true that the description of the excepted acre in the conveyance from the mother to the son is not as particular and specific as it should have been, but, under the evidence showing that at the time the conveyance was made the grantor owned an adjoining eighty acres, and that her dwelling-house and outhouses were situate on the eighty acres conveyed to her son, that these houses constituted her home at the time, and that after the execution of the deed she remained in the occupation of her dwelling and outhouses as she had done before, claiming to own the
The rule applicable to this case is well stated in Dunn v. English, 23 N. J. Law, 126, 128. In that case the court say: “ The construction of the grant must be favorable, and as near the mind and intention of the parties as the rules of law will admit, and to ascertain this intention parol evidence may be resorted to, not to contradict or vary the words of the grant, but to show from the situation and condition of the subject-matter what meaning the parties attached to the words used, especially in matters of description.” The rule above stated was recognized and approved by this court in the opinion of the late learned Chief Justice ByaN in the case of Lyman v. Babcock, 40 Wis. 512. See, also, Ganson v. Madigan, 15 Wis. 144; Prentiss v. Brewer, 17 Wis. 635; Rockwell v. Mut. L. Ins. Co. 21 Wis. 548; and Sawyer v. Dodge Co. Mut. Ins. Co. 37 Wis. 503. This rule is peculiarly applicable to the case at bar. The parol evi
The objection that the court erred in allowing costs to the respondent cannot be sustained. The allowance or dis-allowance of costs to parties in an equitable action is generally in the discretion of the court. See the last paragraph of subd. T, sec. 2918, S. & E. Ann. Stats.
We think there was no abuse of discretion on the part of the court in allowing costs to the defendant in this case.
The plaintiff had notice of the respondent’s claim to the land the court awarded her, before and at the time he brought his action. Tier deed was on record, and she was in the actual possession of the land claimed, and had been so in possession from the date of her deed down to the trial of the action. The plaintiff not only compelled the respondent to make good her claim under her deed, but he also contended that, by reason of certain admissions and statements he claimed had been made by her, she was es-topped from setting up a claim to the land awarded to her by the court. There seems to be no good reason for holding that she was not entitled to recover costs in the action.
By the Court.—The judgment of the circuit court is affirmed.