103 Wis. 192 | Wis. | 1899
This is an action to recover damages for tbe alleged breach of a contract or covenant in failing to keep a certain passageway under tbe railway track open, as it bad for many years previously existed, constituting a part of tbe jDrivate roadway running from tbe public highway on tbe southwesterly side of tbe railway track to tbe premises of tbe plaintiff on tbe northeasterly side of such railway track. Issue being joined and trial bad, tbe court, at the close of tbe testimony on behalf of tbe plaintiffs, granted a nonsuit, and from tbe judgment entered thereon the plaintiffs bring this appeal.
Tbe complaint alleges, and tbe answer admits, or there was evidence given or offered tending to prove, tbe following facts:
Tbe defendant in 1871 obtained a conveyance of a strip of land for a right of way across tbe S. W. £ of tbe S. W. J of section 16, and tbe N. E. \ of tbe S. E. ¿ of section 17, township 10 N., of range 8 E., in tbe town of Lodi, in Columbia county, from one Jonas Narracong and wife, from whom, several years ago, tbe plaintiffs, through mesne conveyances, obtained their title to said lands, subject to such right of way. Upon obtaining such conveyance of such right of way in 1871, tbe defendant constructed its railway thereon, and tbe same ran in a northwesterly direction toward Raraboo and in a southeasterly direction toward Madi
For that purpose the defendant, January 22, 1896, procured from the plaintiffs an instrument in writing, executed by them under their hands and seals, reciting a consideration of one dollar, wherein and whereby they, for themselves, their heirs, executors, administrators, and assigns, covenanted and agreed that they would sell to the defendant or its assigns, at any time within sixty days from that date, the rights in the lands therein described, to the effect that it have the right to alter the channel and bed of Spring creek so that the creek should flow wholly on the northeasterly side of the railway tracks of the defendant, and over and across so much of the N. E. ¿ of the S. E. £ of section 17 as might belong to or be possessed by the plaintiffs, together with the right to fill in bridge No. 313 of the defendant’s railway line, releasing all damages for so turning the creek bed and causing the creek to flow entirely on the northeasterly side of the tracks, and for filling the opening then spanned by bridge No. 813, for the sum of $500. All the water-power rights of the plaintiffs or other persons interested in the lands in the water power known as the Nar-racong mill power were thereby reserved by the plaintiffs, and it was provided that such alteration of the creek bed should not obstruct or damage the free fall of the tail-race away from the mill. The plaintiffs further stipulated therein that there should be maintained by the defendant or its assigns one good grade crossing in lieu of the opening under bridge No. 313,— such crossing to be built by the defendant in such reasonable place as should be designated by the
The defendant thereupon accepted of such optional agreement, and paid to the plaintiffs the $500 mentioned therein, and thereupon, and on February 20, 1896, the plaintiffs and the wife of the plaintiff Mills duly executed, under their hands and seals, and duly acknowledged and delivered to the defendant, their deed, wherein and whereby they conveyed and warranted to the defendant, for the $500 mentioned, the right and privilege of altering and diverting the channel of Spring creek from its then present natural course upon and over all of that part of their lands described in section 17 then belonging to or possessed by the plaintiffs in such manner that the creek should flow only on the northeasterly side of the right of way of the defendant upon and over the lands of the plaintiffs and as defendant should deem advisable, together with the right to fill in and close up the opening in its railway then being spanned by bridge No. 313; that the plaintiffs, for themselves, their heirs and
Apparently there is no way of getting from the Lodi and Okee highway to the premises of the plaintiffs northeasterly of the railway, except through the narrow passageway under the iron bridge No. 812 and the grade crossing mentioned.
The court refused to admit in evidence the optional agreement alleged in the complaint, and held, in effect, that the right to claim damages must be regarded as being based entirely on the deed; that the clause in the deed that “ nothing herein contained shall interfere with the passage under bridge No. 312 ” neither granted any right nor conveyed any interest not in existence before that deed was made; that, if the language had any force and effect, it was more in the nature of a limitation and construction of the language of the deed which preceded.
It is well settled that parol evidence is admissible to explain the subject matter of an agreement or deed, although not to vary its terms. Ogilvie v. Foljambe, 3 Mer. 53. In that case.’Sir "William: GbaNt, M. B., said: “Parol evidence has always been admitted, in such a case, to show to what house and to what premises the treaty related.” The ruling in that case has frequently been sanctioned, not only in England, but in this country. Shardlow v. Cotterell, 20 Ch. Div. 90; Plant v. Bourne [1897], 2 Ch. Div. 281. This court has expressly held that, “ A deed with a description otherwise uncertain should be construed with reference to the actual rightful state of the property at the time of its execution, and extrinsic evidence of that state is admissible to aid in the construction.” Whitney v. Robinson, 53 Wis. 309. So this court has held, in effect, that, although parol evidence is inadmissible to change or vary the terms of a written agreement or deed, yet it is admissible to show the true consideration upon which it is based, even where it
In the case at bar the answer expressly admits that the defendant obtained title to the portions of its right of way in question by purchase and deed from Narracong in 1871, and that the plaintiffs subsequently acquired title to the other premises described through mesne conveyances from Narracong. Since the defendant had the absolute title to the entire right of way before the plaintiffs obtained title, and when they made their deed to the defendant in 1896, it is very obvious that the clause in that deed that “nothing* herein contained shall interfere with the passage under bridge No. 312” did not and could not operate as a limitation upon anything therein granted, as suggested by the trial court; nor could those words o¡3erate as a construction upon any of the preceding language of the deed, since none of such language pertained to that portion of the defendant’s right of way. In fact the deed only conveys and warrants, or attempts to convey and warrant, to the defendant, “ the right and privilege to alter and divert the channel of Spring creek from its ” then “ present natural course upon and over all that part of the northeast quarter of the southeast quarter of section 17,” then “ belonging to or possessed by ” the plaintiffs. Those premises were all west of the mill,
It is equally true that the acceptance of the optional agreement by paying the $500 named therein, and consenting to-accept such deed, made that agreement a binding contract between the parties. The agreement and deed may therefore be considered together as constituting the contract of purchase. Ohlert v. Alderson, 86 Wis. 436. Here both instruments are under seal. The purpose of an ordinary deed of land is not to state the terms of the contract in pursuance of which the land is conveyed, but to pass the title. Collins
Since that part of that agreement to be so performed by the defendant had no connection with any right or privilege granted by the plaintiffs, it did not merge in, nor become ineffectual by reason of the execution and delivery of, the deed. Thus it has been held that “ a covenant contained in an agreement for the conveyance of a tract of land to pay for what it may lack of a certain quantity is not performed by conveying the land, describing it to contain that quantity, if it do not in fact contain it.” Speed's Ex'rs v. Hann, 1 T. B. Mon. 16; S. C. 15 Am. Dec. 18. So it has been held that “ the execution and delivery of a deed by the vendor, pursuant to an executory contract for the sale of land, a portion of the purchase money remaining unpaid and no fresh security therefor being taken, does not extinguish the contract in respect to a provision therein for an increase or rebate of the purchase money in proportion to any excess or deficiency which might exist in the quantity of the land.” Witbeck v. Waine, 16 N. Y. 532. So it has been held that “ the general rule is that, where there is a contract for the sale of land, by the terms of which a deed is to be subsequently given, the delivery and acceptance of the deed
The rulings of the trial court were wrong.
By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.