Van Horn v. Richardson

24 Wis. 245 | Wis. | 1869

Cole, J.

The property which the parties agreed to sell and buy is described in the contract as the “mill property.” Richardson agreed to sell to Van Horn, or to his assigns, “all his [.Richardson’s] right, interest and demand to the property known as the mill property in Christiana, now owned and occupied as common and undivided by the said parties.” In the event that Van Horn should elect to sell, then we think it very clear that he was to sell and convey all of his interest in the same property. For, by another clause in the contract, it was stipulated and agreed that “the, party selling shall make a good and sufficient warranty deed of his half or interest in the said mill property.” These clauses in the contract satisfactorily show that the main subject-matter of tlie sale and purchase was “the mill property,” which the parties at the time “owned and occupied as common and undivided” for mill purposes. This, it appears to us, is the plain, obvious interpretation of the contract, and that, by virtue of its stipulations, the bargainee became entitled to a good deed of the bargainor’s half of the property, described as the “mill property,” whatever it was.

What, then, must be deemed to have passed by these words, “the mill property?” The counsel for the respondents claims and insists, that, by the force of this language, the soil on which the mill stands, and adjacent thereto, necessary for its use, and actually used with the mill, passes to the bargainee ; and that the language likewise includes the flood-gates, dam, flume and other things annexed to the freehold and necessary for its beneficial enjoyment. This, position is fully sustained by very many adjudged cases upon the subject of such grants, and is founded on reason and principle. For it is manifest that if a part of the land covered by the dam, race and flumes is excluded from the subject-matter of the contract, “the mill property” is incomplete and insufficient for any beneficial use. We have, therefore, no doubt that the parties intended, by the general description in the contract, to embrace whatever land was essential to the use of “the mill property,” and had actually been used with it at the time the agreement was entered into. It appears that “the mill property,” as now claimed and occupied by the defendants, covers the same ground, and only the same, that it did when the sale was made, with the exception of the “new part,” which is upon no part of lots one and two. And, as this was no more than was embraced in the contract, and passed by the general description of “the mill property,” the circuit court was fully warranted in finding that the defendant Richardson was entitled to a conveyance of all that portion of lots one and two which formed a part of “the mill property” at tire date of the agreement. It appears that the deed made by Van Horn, in the execution of the contract, described the property therein conveyed as “the undivided half of the reservation for hydraulic purposes, in the plat of the village of Clinton” (excepting what had been formerly deeded to Dingman), together with that part of lot two which lay south of the road. Precisely what is included in the “reservation for hydraulic purposes,” it is not easy to determine from the plat annexed to the bill of exceptions. It is claimed, however, by the counsel for the plaintiffs, that the “reservation” embraced no part of lots one and two, while it is very apparent that a portion of those lots is used and occupied for the purposes of the mill, dam and flumes, etc. The deed, then, doubtless through some mistake in drawing it, fails to convey all the land which the plaintiff Van Horn agreed to convey. And a clear case is presented for the equitable interference of the court to compel a specific execution of a contract clear and unambiguous in its terms.

In opposition to this view, it is claimed that Van Horn agreed to convey an undivided half of “the mill property,” which he and Richardson jointly owned, and no more; and that since the title to lots one and two was in Van Horn at the date of the agreement, it cannot be assumed that he agreed to sell any portion of them. But, manifestly, he did agree to sell all his right and interest in “the mill property,” and to convey the same by a good and sufficient deed; and this imposes upon him the duty of conveying so much land as was actually used with the mill at the date of the agreement, and as is essential to its beneficial enjoyment.

It follows, from these views, that the judgment of the circuit court must be affirmed.

By the Court. —Judgment affirmed.