6 Wis. 214 | Wis. | 1858
By the Court,
From the view which we have taken of this case, we do not deem it necessary to examine, in detail, all the questions presented for our consideration, by counsel, upon the argument of the cause. The first point we feel called upon to notice, is that made as to the correctness of the ruling of the circuit court, in admitting in evidence the record of the plat of the town of Madison, which was offered by the plaintiff below. And one observation will be sufficient to dispose of the question arising upon this point. The admission of the record of the plat in evidence, was objected to upon the ground that the plat itself was defective in many essential particulars, for not complying with the statute in force at the time it was made, (E. S., T. W.s 1839, page 149,) relating to the making and acknowledging of town
In the construction of deeds it is said to be a maxim of the highest antiquity in the law, that all deeds shall be construed favorably, and as near the apparent intention of the parties as possible, consistent with the rules of law. And when the intention is clear, too minute a stress ought not to be laid on the precise and strict meaning of words, and the intention is to be gathered from the entire deed, and not from the language of any particular part of it. 4 Cruise’s Dig., Title 32, chap. 19; Allen vs. Holton, 20 Pick., 458. Keeping these familiar rules of construction in mind, we find upon examining this deed, that it purports to be a deed between James D. Doty as President of the Pour Labe company, of the first part, and Nathan Gcod-ell of the second part. The description of the parties and the style Doty has adopted in signing the deed, favor the idea that it was intended to be the deed of Doty in his representative, in contradistinction to his individual, capacity. But if w;e examine the granting part of the deed, and the estate conveyed, we find in substance the following language. That the said party of the first part for and in consideration, &c., gives, grants, bargains, sells, remises, releases, aliens, and confirms, unto the party of the second part, and to his heirs and assigns, the lots in controversy, with the hereditaments and appurtenances thereunto belonging, “ and all the estate, right, title, interest, “ claim, or demand whatsoever of the said party of the first “ part and of Ms constituents, either in law or equity.” By this language all the estate and interest of the party of the first part, and of Ms constituents, in the premises, passes to the grantee; a mode of expression entirely inconsistent with the idea that Doty conveyed in a fiduciary capacity alone. For if the party of the first part be indeed the Four Lnke company, what was the estate and interest of the constituents in the premises ? Who were the constituents referred to, if not the Four
To permit the sale now to be set aside and declared void for an irregularity of this kind, would be most monstrous injustice. The defendant offered to prove by Bird, the officer who made the levy and sale, that the levy and sale of the lands mentioned in said executions and in the certificate of sale, were made under the directions of Doty, and in compliance with his orders. The testimony in no wise 'went to contradict or impeach the return made by him as an officer, and was competent evidence. And we suppose it was competent to show by Doty himself the same facts. This was sufficient to obviate all objection to the manner of making the levy and sale. It is to be observed that the effect of this testimony was not to destroy and upset titles, but to uphold and support them. Again, it is insisted that there is no return of the sheriff on the vendi exponas from Milwaukee county, of any levy and sale. ¥0 do not think that this objection is supported by the record.
But it is said that the testimony of Doty, if admitted, shows that the sale by the sheriff was made for his benefit, and therefore nothing passed to the purchaser at such sale, the same being fraudulent and void as to creditors, or subsequent pur