132 Wis. 106 | Wis. | 1907
Notwithstanding the apparent consensus of opinion among the attorneys, we cannot think that there was in any of the conveyances any description of the land in question so uncertain or ambiguous as to avoid the deed or fail to convey the land.
“The general rule is, in respect to grants, that where there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance false or mistaken will not frustrate the grant.” Thompson v. Jones, 4 Wis. 106.
It has often been said that a description sufficient to enable a surveyor to locate the land upon ground is a good description. In the deeds thought to contain a defective description there was in addition to a description by metes and bourLds a description in these words:
“Commencing at the southeast comer of lot No. seven "(7) in block No. eight (8) in the village of Reeseville, according to the recorded plat of the village of Reeseville made by W. E. Duffy; thence running easterly on the southern boundary line of said lot to the eastern boundary line thereof; thence northerly on the easterly boundary line of said lot twenty-four (24) feet; thence westerly parallel with the southern boundary of said lot to a point in the western boundary of said lot twenty-four (24)feet north of said place of beginning; thence twenty-four (24) feet southerly on the western boundary line of said lot to said place of beginning.”
The plat mentioned showed lot 7, in block 8, a parallelogram with the east and west boundary lines thereof running slightly east of north and west of south, and with the north and south boundary lines thereof deviating in the same proportion from due east and west lines.
It must be manifest that one could not commence at the southeast corner of any lot and run thence easterly on the southern boundary line thereof. So we are at once informed that this first call is contradictory. The statement that it commences at the southeast comer of the lot is inconsistent with
The findings and judgment reforming the deed, the struggle between the contending parties to patch up their titles by quitclaims, and the extended legal contest involving questions relative to reformation of the instruments were'wholly unnecessary.
It is next contended that the court below erred in overruling the defendant’s objection to the introduction of any evidence under the complaint, and to support this it is argued that the sheriff’s certificate of sale on execution did not confer title or right of possession on the plaintiffs, and that the complaint fails to allege that the plaintiffs are in possession or that the
Next, it has been decided by this court that one having secured a lien on real estate by virtue of a levy thereon by attachment is entitled to maintain an action under sec. 3186, E. S. 1878, which is the same as sec. 3186, Stats. (1898), in this respect. Evans v. Laughton, 69 Wis. 138, 33 N. W. 573. Also upon an execution levy before sale xñade or certificate of sale issued. Galloway v. Hamilton, 68 Wis. 651, 32 N. W. 636. The right exists in this latter case (levy of execution) independently of sec. 3186. Ahlhauser v. Doud, 74 Wis. 400, 43 N. W. 169. And in the very case where the plaintiff held a sheriff’s certificate of sale of 'real estate on execution it was held that the plaintiff could maintain this action under sec. 3186. Keyes v. Scanlan, 63 Wis. 345, 23 N. W. 570. In case the plaintiff claims to maintain the action as a lienholder, possession on his part is not a requisite. Besides, this objection goes to the question of remedy at law and could not be raised on objection to evidence. Hoff v. Olson, 101 Wis. 118, 76 N. W. 1121; State ex rel. Fowler v. Circuit Court, 98 Wis. 143, 73 N. W. 788; Becker v. Trickel, 80 Wis. 484, 50 N. W. 406; Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Sweetser v. Silber, 87 Wis. 102, 58 N. W. 239. Here the defendant, having submitted to a court of equity and having herself an equitable counterclaim for the same relief, could hardly expect by objection to evidence to successfully challenge the jurisdiction of a court of equity on the ground that the plaintiffs were out of possession and therefore had an adequate remedy at law. We find no invalidity in the sheriff’s certificate of sale.
Several errors are assigned on details of evidence, sucb as finding .that Yenie was tbe agent of tbe appellant; that tbe judgment entered against Donnelly was on default in tbe payment of tbe purchase price of lot A, and sucb like. We regard these as unimportant details upon which tbe judgment appealed from in no wise rests and upon which tbe rights of tbe parties in no wise depend.
The judgment of tbe circuit court should be affirmed.
By the Court. — Tbe judgment of tbe circuit court is affirmed.