Schmitz v. Schmitz

19 Wis. 207 | Wis. | 1865

By the Court,

Downer, J.

This is an action brought to foreclose a mortgage. The respondent, in his complaint, alleges that there was a mistake in the description of the premises mortgaged; that the description should have been the southwest half of. lot 2, bl. 128, instead of the west half; and he seeks to have the mortgage in this respect corrected, and then foreclosed. The judgment was in favor of the respondent.

The appellants insist that the mortgage could not be corrected, because it was executed by a married woman. The cases cited seem to sustain this position, so far as the correction affects her interest. It may be, however, that there is a difference between our statute and those under which the decisions he refers to were made. Without passing upon this point, we proceed to inquire whether it was necessary to correct the mortgage. The words “ west” and “ west half,” as applied to lots and parcels of land, have, both in ordinary conversation and in deeds, sometimes a very precise and exact meaning, and sometimes they are used very loosely and indefinitely. The lot in question is four rods wide and eight rods long, the ends fronting on streets, the sides not; and it was divided between the two defendants owning it in common, so as to give to each a half lot two rods wide and eigtht rods long, extending from street to street. At the time the mortgage was executed, this division had been agreed upon, and each party was in possession of his half, and had fenced it and put on it valuable improvements, so that he had a right in a court of equity to compel the division according to the parol agreement, which, before the commencement of this action, was carried into full effect by deeds of partition. To draw an exact north and south line through this lot, and give to the deed a construction by which it should embrace that portion of the lot lying west of that line, would be to make the grantors by such deed not only convey land a part of which they did not own, but a piece of land in such a shape as reasonable men do not often divide such lots into. We think that the proof before the court below, or rather the facts as found by the court, showed that the words “west half” in the mortgage were used loosely and indefinitely. Deeds are to be interpreted according to their subject matter, and such construction given to them as will carry out the intention of the parties, when it is legally possible to do so consistently with the language of the instruments. If the language of the instrument is vague and general, or there is a latent ambiguity, parol evidence is admissible of any extrinsic circumstances tending to show definitely what things were intended by the parties; not that such evidence enlarges or diminishes the estate granted or premises conveyed, but it identifies the subject matter on which the deed operates. Hall v. Dover, 36 N. H., 573; Waterman v. Johnson, 13 Pick., 264. It seems to us that the evidence in this case clearly identified the premises embraced in the mortgage as being the same before as after the correction; and if so, the circuit court did not err to the injury of the appellants in making the correction. Their counsel, as part of his argument, exhibited a plat of this lot, and informed us that a line running exactly north and south would pass through the lot diagonally or nearly so. We presume in this he was right. It follows that if the premises described in the mortgage lie west of this exactly north and south line, one fourth of the half lot not owned by the mortgagors was included, and one fourth of the half they did own left out, and each of these fourths would be in the shape of a triangle with one very acute angle. These facts convince us more fully that the word “ west ” was used in the deed with more or less of indefiniteness, and the very evidence which proved this also identified the land conveyed.

It is clear, on a mere inspection of the answer, that it did not contain a counter-claim; and of course none of its statements could be taken as true without proof.

The decision of the court below states the facts found, but not the conclusions of law. We are asked to reverse the judgment on this account. The judgment is correct according to the facts found; and if we should reverse it for this error, we could do no less than direct the circuit court, after adding to its finding the conclusions of law, to enter again the same judgment. This would be a useless formality. The court below ought to have complied with the statute, but the failure to do so has not inj ured the appellants, and we do not think, in this case, is ground for reversal.

The judgment of the circuit court is affirmed, with costs.