291 N.W. 761 | Wis. | 1940
Action by Edward J. Mathy and others against Anton Mathy and others, to quiet title in plaintiffs, commenced August 26, 1938. Cross complaint by defendants to quiet title in them. From a judgment entered November 6, 1939, quieting title in part of the defendants, subject to a life estate in the plaintiffs, the plaintiffs appeal. *559
The action was brought to quiet title to a tract of land constituting a farm. On January 4, 1913, one Bournoville, who then owned the premises, by warranty deed conveyed them to "Toussaint Mathy and Mary Mathy, his wife, during her lifetime and after her death to the children of said Toussaint Mathy, parties of the second part." The consideration for the deed was $10,500. Toussaint went into possession of the premises and lived thereon with his family until he sold and conveyed them by warranty deed in 1928 to his son Alphonse and his wife, taking back a purchase-money mortgage for $6,954 running to himself and his wife Mary. Mary joined in the deed. Alphonse lived on the land from 1928 to 1934. This mortgage was assigned by Toussaint and Mary to Toussaint's brother Louis who foreclosed the mortgage, making no one parties but Alphonse and his wife, and took a sheriff's deed of the premises. The mortgagee went into possession under this deed in 1934.
Louis, the mortgagee, died in 1934, leaving a will by which he devised the premises to his children, the plaintiffs herein. Toussaint died in 1938; Mary is still living. Toussaint in 1913, when the original deed through which all the parties claim was executed, had eight children, all now living. Toussaint was then forty-nine years old and Mary thirty-six. The original deed through which the parties claim title was drawn by a farmer who was also a notary public but ignorant of law and unskilled in drafting instruments. In 1921 Toussaint and Mary mortgaged the land for $2,000 to Derenne and wife. Later in 1921 they executed another mortgage for $1,500 to Vetter and wife, and in February, 1927, they executed another mortgage for $800 to Lizzie Mallian. The habendum clause of the mortgage of Alphonse to his father read: "To have and to hold . . . to the parties of the second part, their heirs and assigns forever," and the warranty clause was to the effect that the premises were free from incumbrances and that the mortgagors would warrant and defend the title against all lawful claims. *560
The trial court held that the original deed vested title to the premises after the death of Mary Mathy in the children of Toussaint Mathy, and that the seven children other than Alphonse now hold an estate in fee simple in remainder after an estate for the life of Mary Mathy, leaving in the plaintiffs an estate for the life of Mary. Alphonse by executing the mortgage and its foreclosure lost his interest in the remainder. Judgment was entered accordingly upon the counterclaim of the defendants. As appears from the foregoing statement of facts the action was brought to quiet title. The parties claim through a warranty deed of a common grantor. The introductory clause of this deed recites that the deed was made between "Toussaint Mathy and Mary Mathy, his wife, during her lifetime and after her death to the children of said Toussaint Mathy, parties of the second part."
It is contended by the plaintiffs that the granting clause of the original deed controls the introductory clause, and as the granting clause does not purport to convey a life estate but a fee it therefore must be taken as overriding the introductory clause and as conveying a fee.
It is true that the original deed conveyed the fee. The grantor held an estate in fee and the deed conveyed all the estate that the grantor had. It is also true that the grantor warranted the title as in fee. But all this is not inconsistent with the granting of a fee in remainder after a life estate.
The plaintiffs to support their contention rely on what was said by Mr. Justice OWEN in the original opinion of the court in Weber v. Nedin,
If it were true that there is inconsistency between the introductory and granting clauses of the original deed it would be necessary to bear in mind, in determining the meaning of the deed, that when the instrument is drawn on a printed form, written or typed portions of it are more strongly indicative of intent than seemingly inconsistent language of the printed portion. Such provisions are likely to be inserted, especially by unskilled scriveners, wherever there is a blank space to insert them rather than where in legal sequence they properly belong. There is no room in the granting clause of the printed form used in the instant original deed to interline or insert the provision written into the introductory clause. That provision was most likely placed in the first blank space that afforded room for it.
The plaintiffs ask in an amended complaint for reformation of the original deed on the ground of mistake. But there is no evidence of any mistake in the drafting of it. None of the parties to the instrument testified to any mistake. It was perhaps a mistake to have had the deed drawn by one not a lawyer, but that is the kind of a mistake for the *562 correction of which no remedy has yet been found. The rights of the parties must be left to rest on the construction given to the deed.
It is agreed by counsel for both parties that unless reformation may be granted the intent of the parties to the original deed governs its construction. It is true as contended by the appellants that all deeds convey a fee-simple estate unless a less estate is expressly limited. But as above stated a fee-simple estate is conveyed, although it be in remainder after a life estate. In determining the intent of the parties, the language of the deed itself must be given the effect that it reasonably bears. It is of course true that in construing any instrument the situation of the parties when the instrument was drawn may be considered and the instrument must be viewed in the light of the existing circumstances. It is argued that it is unlikely that Toussaint Mathy, who presumably was the one paying the $10,500 consideration for the deed, although there is no testimony to that effect, could have intended to limit the individual interest in the premises to a joint interest with his wife during her life, but that is what the introductory clause in the deed plainly says. The trial court inferred that as the wife was thirteen years younger than the husband, the husband's idea was that he would die first; that he wanted to protect his wife for her life, but did not want her on surviving him to have the fee and be in position if she married again to divert the property from his children; and he therefore limited her estate on surviving him to her life and had the remainder vested in his children. That is perhaps as reasonable an inference as any that could be drawn.
It is also argued that in deeding the premises to their son Alphonse the parents could hardly have intended to have taken nearly $7,000 from him for an estate limited to the life of his mother, and that the parents could hardly have intended to take $5,000 from the husband's brother upon the security of a mortgage of an estate so limited. That the son *563
or brother could not have understood that the interest of the son was so limited is of course plain. Mary was fifty-one years of age at the time the deed to Alphonse was executed. If Toussaint and his wife were aware of the state of the title and understood that the estate conveyed to Alphonse was limited to the life of Mary, they committed a gross fraud upon both their son and on Toussaint's brother, and it is hardly conceivable that they actually so intended. A more reasonable inference is that in the fifteen years that had elapsed since the execution of the original deed they had forgotten the express provision for the children of Toussaint incorporated in the original deed and had forgotten that they intended when the original deed was executed, the deed should grant an estate in the premises precisely as expressly stated in the introductory clause. It may also more reasonably be inferred that when Toussaint and Mary conveyed to Alphonse they considered that what they had given they might take away than that they intended to commit a fraud on Alphonse when they sold the land to him or on Louis when they sold the mortgage to him. But the law, of which they were ignorant, is that the delivery of the deed by the original grantor was a delivery for all and to all of the second parties and that whatever Toussaint or he and Mary had caused to be vested in the children of Toussaint by that .delivery they could not afterwards take away from them or deprive them of. The estate conveyed to the children of Toussaint by the delivery of the original deed was an expectant estate, or an estate in expectancy. The latter is defined in 1 Bouv. Law Dict., Rawle's Third Revision, p. 1156, as one where "the enjoyment is postponed, although the estate or interest has a present legal existence." Sec.
"Expectant estates not defeated. No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any *564 destruction of such precedent estate by disseizin, forfeiture, surrender, merger or otherwise."
The appellants urge that when an instrument is reasonably susceptible of two meanings the practical construction given to it by the acts of the parties after his execution is of great force in determining its construction. But if it were conceded that the language involved in the introductory clause is susceptible of two meanings, to make the rule invoked apply, the acts of the parties afterward to constitute a practical construction must be the act of all of the parties in interest. There is no evidence that any of the children of Toussaint but Alphonse ever had any part in or knowledge of the acts of Toussaint and Mary that are suggested as constituting a practical construction. The deed speaks as of the time of its execution and delivery, not as of the time when Toussaint and Mary executed their subsequent mortgages.
We are constrained to construe the deed on which the parties hereto based their claims as the trial court construed it. The language of the introductory clause first herein quoted, taking it as meaning what is says, cannot be construed into any other meaning. It clearly shows that whatever they came to think about it afterward, when Toussaint and Mary had the deed executed they intended the land to go as therein expressed, — to Toussaint and Mary during the life of Mary and after her death to Toussaint's children. They having then so intended, so the land was transferred.
By the Court. — The judgment of the circuit court is affirmed. *565
