115 Wis. 229 | Wis. | 1902
This appeal turns on the meaning of the word “premises” as used in the release clause of the trust deed. The trial court held to the technical meaning thereof in deciding this case, that is, that it was used in the same sense as that attributed to such word when it occurs in the habendum clausa of a deed, to the estate granted, not to the corpus of the particular parcel of realty referred to. That such is its technical meaning may be conceded. Farquharson v. Eichelberger, 15 Md. 63; Miller v. Ewing, 6 Cush. 34; Holbrook v. Debo, 99 Ill. 372; Berry v. Billings, 44 Me. 416. It is difficult, however, to discover that it was used in that sense in the clause in question. The word is commonly used in referring to distinct parcels of real estate. The law dictionaries give that as the common or popular meaning.
So rules of law require that the technical meaning of the word should not be preferred to the common, everyday meaning’,' when it is used outside the habendum clause of a deed, otherwise than in a connection rendering the technical sense plainly appropriate. Amos v. Fond du Lac, 46 Wis. 695, 701, 1 N. W. 346; Cummings v. Dearborn, 56 Vt. 441; Bandalow v. People, 90 Ill. 218; Winlock v. State, 121 Ind. 531, 23 N. E. 514; State v. French, 120 Ind. 229, 22 N. E. 108, 735 ; Hilton’s Appeal, 116 Pa. St. 351, 9 Atl. 342; New Jersey Zinc Co. v. Boston Franklinite Co. 15 N. J. Eq. 418, 462. All the law dictionaries recognize that at this day “premises” generally speaking, when reference is made to realty, in the popular sense,» means land and appurtenances thereto. In the later works such meaning is given as one of the appropriate significations of the term in legal instruments. Manifestly, the meaning of the word in one connection may be radically different than in another. The premises of a deed are those parts preceding the habendum clause. “In consideration of the premises” conveys the idea of the agreements on the part of one party to a contract, followed by agreements on the part of the other. The premises described in the premises of a deed are the lands described in that part of tire deed preceding the habendum clause: There we have plainly two distinct meanings in close connection with each other.
Now “premises,” it seems, is plainly not used in the release clause of the trust deed as in the habendum clause of a deed or as referring to preceding agreements. The antecedent clause is, “all or any or either of the lots contained in said
Applying the foregoing to the facts of this case, it is plain that “premises,” where it occurs in the release clause of the trust deed, is not in such a connection as to point at once to its technical, but rather points to its common, ordinary meaning, — to the particular land, the corpus thereof referred to. Any other meaning than the latter is involved, at least, in obscurity, requiring the most careful analysis of the whole instrument to bring it into light with any show of reason, in view of settled legal principles.
True, as counsel for appellant contend, the intent of the parties to a contract, so far as expressed by their language, should always govern, and effect must be given, if possible, to every clause of the instrument in determining the meaning of each particular portion thereof, and all should be read in harmony with the dominant purpose of the parties so far as rules of language and of law will permit. But we are unable to clearly see, or see at all, so as to give effect thereto, the same dominant purpose in the instrument in question that
We have not failed to note and carefully consider all of the reasons advanced by respondent’s counsel for a conclusion contrary to tbe one above expressed and embodied in tbe judgment complained of. It is sufficient to say that they do not appear to us sound. If it were true that tbe trial court’s construction of tbe release clause would fully carry out tbe principal purpose of tbe mortgage, there would still be tbe insuperable difficulty of adopting it, that it violates what tbe parties seemingly intended to express. When one mortgages a lot, reserving power to lease it, coupled with a provision to tbe effect that in case of tbe exercise of tbe power tbe premises described in the lease shall thereupon be discharged of tbe mortgage lien and tbe rent reserved shall tahe tbe place of that upon said premises (and that language seems to be a fair paraphrase of tbe language of tbe trust clause under consideration), it seems that there is little room, if any, for argument as to what is intended.
Complaint is made because tbe judgment provided for a sale of tbe mortgaged premises to raise money to reimburse tbe mortgagee for such sums as be might advance to pay taxes on tbe property or redeem tbe same from tax sales between tbe date of tbe judgment and-the day of sale, and that any such sums should constitute a part of the aggregate amount of money necessary to be paid to prevent tbe enforce1ment of the judgment by' a sale, and be considered by tbe sheriff as a part of tbe mortgage indebtedness in .determining whether tbe proceeds of a sale were sufficient to fully satisfy the mortgage claim. True, as counsel for respondent claim, on equitable principles and by statute as well a mortgagee who has paid taxes on the mortgaged properly to protect his security is entitled to a special lien on such property for bis expenditures in that regard. Secs. 1158 — 1160, Stats. 1898. But it by no means follows that such lien can be anticipated
The result of the foregoing is that the judgment appealed from must be reversed and the cause remanded with directions to render judgment in accordance with this opinion.
By the Court. — So ordered.