Towne v. Salentine

92 Wis. 404 | Wis. | 1896

Mabshall, J.

Several questions are presented by the exceptions to the findings of the trial court and the order for •judgment. The first in order is that the deed from Kazro •to Burnham conveyed only an easement; hence that plaintiff, claiming under that title, never was the owner of the 12-l-ioot strip, or had any interest therein, except that of an ■easement. This claim is based on the principle that in the «construction of a deed the part excepted from the grant is Reid to be 'something ,not granted and which does not pass . at all from the grantor making the exception, unliké a reservation, which is the taking back of something included in •the grant. Fischer v. Laack, 76 Wis. 318; S. C. 85 Wis. 280; Rich v. Zeilsdorff, 22 Wis. 544. In the last case the rule which appellant invokes is stated as follows: “A reservation •is always of something taken back out of that which is granted, while an exception is some part of the estate not .granted at all.” Testing the two conveyances made by Eazro by this rule — the one to Burnham, through ivhich ’■respondent claims, and the other to Augusta Salentine, ■through which appellant claims,— it is plain that the title ’to the 12-J-foot strip was by clear and unambiguous words in the first conveyance vested in Burnham, reserving the . easement of a right of way over the strip for all owners of or persons interested in lots 12, 13, and 14; and that the •words of exception in the deed to Augusta Salentine ex- . cepted out of the grant to her the 12-£-foot strip, so that no title passed to her or any interest whatever except an easement in the strip to use the same as a passageway in com.mon with the other proprietors of the lots. The deed appears to have been made advisedly. The conveyance in the ■-one of the fee reserving the easement is consistent with the «exception out of the grant in the other of the 12J-foot strip; ¡.the same, however, to be for use as a passageway for all ■persons interested in the three lots. Such was the holding >of the trial court, and it is clearly right.

Error is assigned in that there was no allegation of possession, and hence that the complaint fails to state a good cause of action; but it appears that the complaint was properly amended on the trial so as to allege possession, and the-fact was found by the court in plaintiff’s favor on sufficient evidence.

There are sufficient facts found to avoid the tax deed. Either the fact that the strip was assessed as a part of the-east 55 feet of lots 12, 13, and 14, instead of separately and-to plaintiff, the true owner; or the fact that no notice was-served upon the plaintiff, as the-owner and the party in possession, of the application for the tax deed,— was sufficient to avoid such deed, the action having been brought before* the defects in that regard were cured by the statute of limitations. Whittaker v. Janesville, 33 Wis. 76; Jenkins v. Rock Co. 15 Wis. 11; State ex rel. Roe v. Williston, 20 Wis. 228;. Hamilton v. Fond du Lac, 25 Wis. 490; Orton v. Noonan, 25 Wis. 672; Siegel v. Outagamie Co. 26 Wis. 70; Potts v. Cooley, 51 Wis. 353; Howe v. Genin, 57 Wis. 268.

It was stipulated that payment of one tenth of the taxes - chargeable to the whole lot, with interest and charges, under sec. 3087, R. S., as a condition precedent to respondent’s-right to recover, would be sufficient compliance with suchi section, and on that stipulation and the evidence the court-ordered the payment of $46.12. It appears that this included-about four sevenths of the total taxes paid by defendant. In arriving at a conclusion the trial court considered only the-tax on the lot, exclusive of the improvements. That is clearly indicated in the findings. Objection is made to this, and it is said by appellant that there is no evidence in the case to-show upon what basis the computation was made. An examination of the printed case bears out such contention, but the bill of exceptions in the record discloses the fact that the-east 55 feet of lots 12, 13, and 14 were assessed as a single-tract, exclusive of the improvements, at $2,000, and the improvements at $1,500. The form of the stipulation was as-follows: “ It is agreed by the parties that a fair proportion* of the taxes assessed on the entire tract of 55 by 150 feet, wonld he ten per cent, of the whole for the 12^-foot strip embraced in the alley.” The court obviously considered this stipulation, under the facts of the case, as requiring payment of ten per cent, of - the taxes, exclusive of the improvements, and made the computation and finding accordingly.. We think the construction was right, and a verification of the computation shows that it is substantially correct.

We see no reversible error in the case, and it follows that the judgment of the circuit court must be affirmed.

By the Gourt.— The judgment of the circuit court is affirmed.