99 Wis. 20 | Wis. | 1898
We are placed at some disadvantage by reason of a dispute having arisen between counsel as to the actual facts that were before the trial court at the time the motion for nonsuit was granted. A reference to the bill of exceptions, however,'seems to settle the contention adversely to the claims of appellant. Neither have we been favored by any definite assignment of error upon which appellant relies, unless it be the broad statement that the court erred in the granting of a nonsuit. This requires an examination of the evidence received and offered on the trial, and the rulings of the court thereon.
A party claiming title and right to possession of land, under a very familiar rule, must recover upon the strength •of his own title, rather than upon the weakness of the title of his adversary. Ordinarily, the plaintiff must connect himself with the government title, unless both parties claim from a common source, as was the case in Sexton v. Rhames, 13 Wis. 99. But here neither the pleadings nor the proof offered show a common grantor. There is not a whisper in the evidence indicating from what source respondent claims title. Neither does the answer disclose any information from which a deduction can be made as to the source of respondent’s title, nor does the evidence received or offered show that respondent was, or ever had been, in possession of the land. Such being the state of the record it became necessary for the appellant either to connect herself with the government title or with some grantor who was the common source of title. Such necessity seems to have been in ■the mind of counsel for appellant when he asked for the ■stipulation referred to in the statement of facts. The stipulation not having been consented to, and there being a
Still further, there was no evidence that appellant or her grantors had ever been in possession of the disputed premises, so as to give rise to any presumptions which such possession might give. Ablard v. Fitzgerald, 87 Wis. 516. But, if this were not so, there is still another reason why, under the situation presented, the conclusion of the trial court was right. When evidence was- offered to show the condition of things at the time of the execution and delivery of the deed from Emeline A. Taylor to Kelly, Murray, and Slauson, counsel referred to a certain plat marked “ Plat No. 1,” and a map “No. 8,” which were ruled out. These papers, taken in connection with this deed, it is argued, would have shown the condition of the land at the time the deed was executed, and were essential to appellant’s case. Whether this be so or not, the failure to preserve them in the bill of exceptions leaves us powerless to determine their competency. When a document is offered and excluded, it must be brought into the record, in order that the court, on appeal, may determine its competency. Elliott, App. Proc. § 748. Map No. 8 seems to have been a paper that was used on the hearing of this case in this court on the former appeal. At the trial it does not appear to have been marked or identified, nor is it attached to or referred to in the bill of exceptions on this appeal, any further than has been stated. This court can take cognizance of paphrs or documents which are not a part of the judgment roll only when they have been preserved and properly identified in the bill of exceptions. The deed from Emeline A. Taylor to Kelly, Murray, and Slauson purports to convey a tract of land being “ part of block 1 according to the original plat of the village, now city, of Racine, made by Moses Yilas, surveyor, and recorded in the office of the register of deeds of said Racine county.” Respondent’s
The deed in question purported to cover only a portion of block 7 according to the original plat made by Moses Yilas, surveyor. “ A deed containing a description, and referring to a map having lines drawn upon it, and marking natural boundaries and the natural objects delineated on its surface, should be considered as giving the true description of the land, as much as if the map were marked down on the deed.” 2 Devlin, Deeds, §§ 1020, 1021; Chapman v. Polack, 70 Cal. 487. And see Masterson v. Munro, 105 Cal. 431; Schenley v. Pittsburgh, 104 Pa. St. 472. In this case, the deed calling for a tract of land in block 7, according to a specific survey, cannot be extended to cover land in some other block by the evidence received or offered at the trial. If the deed in question does not convey the disputed tract when read with reference to the plat, then the grantee should seek its reformation. The fact, if it be a fact, that this deed was offered and received in evidence on the former trial cuts no figure in this case.
Under R. S. 1878, sec. 3092, respondent was entitled to a . new trial upon compliance with its terms. When the judgment was vacated, the action stood for trial as if it had flever been tried. Green Bay & M. Canal Co. v. Hewitt, 62 Wis. 316; Hewitt v.Wis. River Land Co. 81 Wis. 546; Edwards v. Edwards, 22 Ill. 121; Hammond v. Carter, 161 Ill. 621; Donahue v. Klassner, 22 Mich. 252; Eichert v. Schaffer, 161 Pa. St. 519; Brownsville v. Cavazos, 100 U. S. 138.
The view we have taken of this case renders it unnecessary to determine the motion of respondent to strike out a part of the record sent to this court. The provisions of rule YII¿- are plain and easily understood, and at this late day there is no excuse for a violation of it.
By the Cowrt.— The judgment of the circuit court is affirmed.