Siedschlag v. Griffin, 132 Wis. 106

132 Wis. 106 | Wis. | 1907

TiMLiN, J.

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 statement that it runs easterly on the southern boundary line of the lot to the eastern boundary line thereof. The only comer at which one could commence and do this is the southwest corner. To run along the southerly boundary of a parallelogram to the intersection of the easterly boundary inevitably lands one at the southeast corner thereof. Having taken us to a point which we reached by following the southerly boundary of the lot to the eastern boundary line thereof, which is necessarily the southeast corner, we proceed northerly on the eastern boundary line of the lot twenty-four feet. From this last point we proceed westerly, and parallel with the southern boundary line of the same lot,-to a point in the western boundary of said lot. This last point is described as twenty-four feet north of the said place of beginning. A point in the westerly boundary line of a parallelogram reached by a line parallel with and twenty-four feet north of its soutji boundary is necessarily twenty-four feet north of the southwest corner of the lot. Our further course is thence twenty-four feet southerly on the western boundary of said lot to said place of beginning. This' is equivalent to saying that the southwest corner is the place of beginning. This resolves whatever doubt or ambiguity there was in the first call of the description and shows that the starting point was the southwest corner.

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 land is vacant or unoccupied. These objections indicate some degree of confusion or misunderstanding on this subject. In the first place, sec. 3186, Stats. (1898), is not a restriction upon, but an enlargement of, the powers of a court of equity. Hart v. Smith, 44 Wis. 213; Pier v. Fond du Lac, 38 Wis. 470; Ahlhauser v. Loud, 74 Wis. 400, 43 N. W. 169, and cases cited at page 408.

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.

Tbe general findings of tbe circuit court that tbe land contract from Eos to tbe appellant was not executed until April 2, 1904, and that tbe consideration thereof, if paid at all,, was paid after tbe appellant bad full notice of tbe fraudulent nature of tbe deeds to John Eox and of tbe action brought by tbe plaintiffs to set aside said deeds as fraudulent, we consider amply sustained by tbe evidence. When tbe action in favor of tbe plaintiffs and against Donnelly and Eox was brought and when Us pevidens was filed therein on April 21,. 1904, tbe appellant bad no title on record to this land. The evidence would warrant a finding that she bad at this time received no delivery of her land contract and that that was not. delivered until after May 16, 1904, and of course she bad m> deed. Tbe action in which Us pendens was filed went on to-judgment, and tbe appellant was in any event clearly within tbe provisions of sec. 3187, Stats. (1898), which provides-that “every purchaser or incumbrancer whose conveyance or-incumbrance is not recorded or filed shall be deemed a subsequent purchaser or incumbrancer and shall be bound by the-proceedings in tbe action to tbe same extent and in tbe same-manner as if be were a party thereto.” Tbe appellant was-therefore bound by tbe proceedings in tbe action against Don-nelly and Eox to set aside their deeds as void, and she was-bound by tbe judgment entered therein to tbe same extent as-Donnelly and Eox were bound by that judgment. That judgment canceled up tbe deed of her grantor, and with that went her title recorded or acquired after tbe filing of Us pendens. Although tbe evidence sufficiently sustains tbe finding of the circuit court, yet nothing more was necessary than the introduction of tbe judgment last mentioned, tbe proof of filing-os pendens, and proof that tbe appellant recorded title after-such filing in order to make a case against her for tbe relief' sought in this action. Her alleged possession by attornment of tbe person who was in as tenant of Eox and Donnelly could not take any effect prior to tbe delivery to her of her deeds of conveyance or land contract, and, as we believe, that occurred after tbe filing of lis pendens in tbe action against Donnelly and Fox, and of course sbe does not claim title under that person.

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.