25 Wis. 71 | Wis. | 1869
Lead Opinion
There would not seem to be any serious difficulty in affording proper relief to LaTce and Palmer in this action, if it appears that they were the equitable owners of the mortgaged premises when the mortgage was executed, and had such possession as would operate as notice to the mortgagee or his assignee of their title. That there was a mistake in the description of the land in each of the conveyances executed by John McCune to his sisters is established by the most satisfactory evidence. The mortgaged premises embraced in.the mortgage of Eliza should have been conveyed to Jane. She was really the owner of the land, John having entered it for her and as her agent. John, in violation of his trust, as it may fairly be assumed, entered the land in his own name, instead of that of his principals ; and hence the mistake • on his part. But he states that he deeded to Eliza the land entered for Jane, and his testimony is corroborated by all the evidence in the cause. This mistake', therefore, in the deed from John McCune to Jane McCune, having been established by the most conclusive evidence, there would not seem to be any valid objection to declaring the mortgage void as against the premises in question, unless the mortgagee or his assignee is entitled to protection as
It appears that the land in controversy was situated in' a new and heavily timbered country, where there were but few settlements. As early as 1849 or 1850, parties claiming under Jane McCune went into the actual possession of the land, and chopped and cleared small pieces on each tract now belonging to Lalce and Palmer. In December, 1851, the defendant Lalce bought a hundred acres of tlie land, took possession of the same, and commenced chopping and clearing it up. At the time, there was about three-fourths of an acre cleared and fenced. He chopped on the land until the spring of 1852, when he left it and went east. At the time he left, he leased the land by parol to one Blackwood, who was to use the three-fourths of an acre that was fenced, and was to clear up the two and a half acres that had been chopped.. Blackwood occupied the land as tenant of Lalce up to the time the mortgage was given, clearing up what had been chopped, inclosing it in a fence, and using it for raising turnips and potatoes, ahd for pasturing. The facts in .regard to the isossession of the sixty acre Palmer tract are very much the same as those relating to the Lake tract. There was a. clearing upon it of three-fourths of an acre, which was inclosed in a fence. One Thompson cultivated this clearing for two or three years,- commencing with 1853, as tenant of Palmer, and had charge of the land generally. It was well understood among the settlers of the country that Lake claimed to own one of these tracts, and Palmer the other, from 1851 or 1852. Thus both tracts were actually occupied and cultivated by the tenants of Lake and Palmer, as far as they were cleared,
In Ely v. Wilcox (20 Wis. 524) the rule was laid down, that possession, to be notice, must be open, visible, exclusive, and unambiguous, not liable to be misunderstood or misconstrued. Now, it seems to us that the facts of this case bring it fully within the rule here stated. For what more notorious, open, visible and unambiguous acts of possession and ownership can be manifested over real estate, than by chopping, clearing up, fencing and actually cultivating between two and three acres of heavily timbered land? True, the number of acres is not large, yet it will cost as much time, labor and money to chop and clear up three acres of heavily timbered land, and make it fit for cultivation, as it will to make large improvements on the prairie. The possession and cultivation of a large inclosed field on the prairie, by raising wheat upon it, would not naturally be more observed by the public, -or create a stronger presumption of notice, than such an improvement in tbe woods. . And it is very plain that such unambiguous acts of ownership over land will never be confounded with mere acts of trespass. They are not liable to any such misconstruction. Considering the condition of the country, that it was sparsely settled and but a little cleared up, the clearing, fencing and cultivating one, two or three acres are such decided acts of ownership as will not fail to attract the notice of the public, as it seems they did in this case, and are of such a character to- be notice to a purchaser. Such improvements, under the circumstances, are open, visible, notorious and unambiguous, and are as striking evidence' of the continued and complete possession of the land by the party who makes them, as
The judgment of the circuit court must therefore be affirmed.
Dissenting Opinion
dissenting. The question of notice, in cases of this nature, is a question of fraud, or bad faith. It stands upon the ground of fraud and bad faith in the subsequent mortgagee or purchaser for value; and equity never interferes to deprive him of the benefit of the legal title, except upon that ground, the proof of which must be most clear.and satisfactory against Jiim. It is not
' ’ In discussing this question of notice, in whatever form it may arise, courts should never lose sight of this fundamental principle upon which the doctrine is founded. The consequences of notice are most highly severe and penal, involving no less than a forfeiture of the entire title or estate of the party charged with it, as a punishment for his fraud. Courts cannot,. therefore, be too guarded and cautious in the application of this doctrine, the liability to error in which has led so many courts and judges to regret that it ever existed at all, and inclined them to limit it to cases to which it has already been applied, and not to extend it to new ones. Ware v. Lord Egmont, 4 De G., Mac. & G. 473; Attorney-General v. Stephens, 6 id. 148 ; Ford v. White, 16 Beav. 123; Fish v. Redington, 31 Cal. 185. Every case should be carefully tested by the principle; and the questions should be: “ Was the party guilty of fraud or bad faith? Hid he acquire the legal title with intent to cheat and defraud his adversary ? Hoes the testimony clearly and satisfactorily establish these facts ?”
The great controversy in cases where possession is relied upon as the ground of constructive notice is, and always has been, as to the nature and extent of such possession. What is that possession which the purchaser in looMng upon is bound to Tcnow■ is - not the possession of his grantor, but is the possession pf some third person ? Knowledge — actual notice — that the vendor is out of possession, and that some third person is in, must in all cases be brought home to the purchaser, or the charge of fraud or bad faith cannot be sustained against him. And this knowledge must not be the subject of doubt or speculation, or of probable inference even ; it must be clearly and positively established. •
It is with a viéw 'to this- ingredient of fraud, and the positive proof required to establish it, that courts of equity have observed so pauch care in laying down ,the rule as to what that possession shall be which puts the purchaser upon inquiry, or operates as constructive no
The facts of this case are in substance as stated in the opinion of the court, with one exception. The mortgage was executed in mid winter, February, 7, 1854, when there were no crops growing, cattle grazing, or other visible sign upon the land of any present use or occupancy whatever.
The mortgagee in this case was a corporation, having its place of business in the city of Milwaukee, distant about one hundred and fifty miles from the land in controversy. Let us take the facts just as they would have presented themselves to an agent of the mortgagee, .if he had visited the premises at or about the time the mortgage was executed, for the purpose of ascertaining their situation, value, etc. What would such agent have seen ? The two small unoccupied fields, with evidence, perhaps, of the previous season’s cultivation, and here and there a stump in the woods showing that a few trees had been cut or taken from or used upon the premises. This would have been all, absolutely every thing, visible upon the lands themselves, to warn him that the mortgagor was not in possession, and that the defendants were. He would not have seen the cattle grazing in the woods, nor the growing beans, turnips, or potatoes.
My associates adopt the rule which was well laid down in Ely v. Wilcox (20 Wis. 531), “that possession,
But if the transaction had taken place at a different season of the year, in summer, for example, when the crops were growing and cattle grazing, would the case have been any different? The buyer and seller go together to the lands, the buyer to examine and the seller to point them out. The buyer sees the improvements, the crops growing and cattle grazing, but sees no person on the lands exercising any acts of ownership or control. He has been informed by the seller that the lands are partially improved, and that he has growing crops and stock upon them. Or if he has not been so informed, he inquires of the seller, and the latter informs him that the improvements, crops and cattle are his — that he put in the crops, or employed laborers to do so, and to attend the cattle. Would not the buyer, a stranger, acting on the information furnished by the record that the seller was the owner of the land, have acquired a valid title under such circumstances as against all the world ? The registered title, that shown by the record, is, to the stranger, or party having no other information, the only true one. To him the record imports verity. It is so intended by law; and when he acts upon it, he acts as one having positive knowledge that the party with whom-he deals lawfully owns and may lawfully dispose, and that no other person has any title or interest whatsoever. In such a case the apparent possession of the owner and grantor becomes the real and only possession to the stranger and purchaser. The latter looks upon it and sees nothing inconsistent with the title, possession and representations of his grantor. Nothing is more common
So much for the question of possession in this case; concerning which I think it very clear that it was wholly insufficient to put a purchaser upon inquiry. It was not of a kind to show any notice to or knowledge in a purchaser that an adverse possession existed. The purchaser, as we have seen, must trust to appearances — to the visible condition of the premises at the time of sale, with respect to the fact of possession; and if there be nothing in these to awaken suspicion or cause inquiry, he must be held innocent, unless actual knowledge on his part be otherwise shown. The primary fact, therefore, or foundation, upon. which the mortgagee must have been charged, if at all, with constructive notice of the defendants’ equities, is wholly wanting. It is, of course, quite plain to be seen now, with all the facts in evidence before the court, that there was an adverse possession, at least for some purposes. As stated in the opinion of the court, the acts of the defendants may have been something more than mere trespasses, and may have constituted a disseisin, as between them and the holder of the legal title. But these are nothing to our present purpose. Because, with full knowledge of every fact, we can see that there was 'a change of possession as between the owner or mortgagor and the de
But the evidence discloses some other facts which seem to enter into the consideration and judgment of my brethren. It was generally reputed throughout the neighborhood that LaJce claimed one of the tracts, and Palmer the other; and their agents or tenants, Black-wood and Thompson, resided in the neighborhood. These are the additional facts, and the only ones. These neighborhood reports and -rumors were proved by several witnesses; but there was no proof, or offer of proof, that any officer or agent of the mortgagee knew any thing about them. It was shown that Blackwood and. Thompson were agents to look after the lands and prevent trespassers from cutting the pine timber, etc.; but it was not shown, nor offered to be, that any agent or individual connected with the taking of the mortgage knew any thing about them, or that any such persons as they or their principals existed. The time has not yet arrived, I trust, when any person is to be convicted of fraud, and his property forfeited, upon such evidence as this. What would it have mattered to a purchaser, 'though the whole town had heard of Laké s and Palmer1 s claims, if he knew nothing about them ? Could he have been found guilty of fraud on their knowledge? And what would it have signified to him, that their agents resided in the neighborhood, so long as there was nothing in the possession to suggest the fact that they, or any one else, had any interest in or control over the lands ? The truth is, that all this testimony was irrelevant and inadmissible, and should have, been excluded, and especially the evidence oí rumors and reports. It is well settled that such rumors and reports, or mere
I come now to the examination of some authorities directly touching the questions which I have thus discussed. And first I must refer to the case of Ely v. Wilcox, above cited, in this court, the facts of which will be found to have been very much stronger in favor of the party claiming by the unregistered conveyance than those here presented. The facts unfortunately are not stated in the report, and I give them here as they appear from the record. That was a tract of timbered land, situated in a new and sparsely settled country, upon which Ely, the owner and claimant by the prior unregistered deed, had a dwelling-house built of pine logs, hewed and well laid up, with shingle roof and glazed windows. The house was sixteen by twenty-two feet on the ground, and in front of it was an inclosure which had been cleared and cultivated as a garden. Ely acquired his title November 1, 1854. The conveyance to the defendant Wilcox was in May, 1856. Prom the date of Ely’s deed until within a few days before the date of that to Wilcox, Ely had lived very near the land, and during all the time had been exercising constant'acts of ownership over it. He had taken possession of the house and leased it to a tenant, by whom it had been occupied a considerable part of the time. He and several men in his employment, together with a surveyor or surveyors, had worked upon the land for days together at different times, laying it out into lots and blocks as an addition to the town of Superior. Lines and openings were cut and cleared by him through the woods, indicating the different streets and the size and location of the blocks. When the house was not occupied by his tenant it was used by himself and his men on such occasions to cook and sleep in. At other times it was locked up, and he kept the key. It was so
In McMechan v. Griffing, 3 Pick. 149, it was held that implied notice of a prior unregistered deed, to avoid a subsequent deed or attachment, must be not merely a probable but a necessary and tonquestionable inference from the facts proved. Such inference cannot in all cases be made from an open, peaceable, and exclusive possession. Thus, where a person, owning and in possession of a part of a lot of land not divided by a partition fence, purchased the residue, consisting principally of wood land, and which had not been occupied by the grantor, repaired the fence around the lot, depas-tured cattle, in it, sold trees from the part purchased, and removed an old hovel standing on the same part, it was held that these facts did not imply notice. And in the opinion the court say: “When a prior conveyance, not recorded until after one of a subsequent date, is attempted to be supported on the ground of fraud in the second purchaser, the fraud must be very clearly proved. This remark applies as well to implied as to express notice. The principle is the same in both. The
In Buck v. Holloway’s Devisees, 2 J. J. Marshall, 180, the court say: “The only sensible rule is, that actual residence upon the land is notice to all the world of every claim which the tenant may legally assert in defense of his possession.” It might be going too far to say, a pri-ori, that this is in all cases necessary. But this, or something equivalent to it, must be shown. If the tenant is actually present on the land when the purchaser comes, so that he is seen in possession, that may suffice. There may be something in the nature of the improvements or use to warn the purchaser; as, if he sees a church, a school-house, or other public budding on the land, or a public burial place, or a pond of water used to supply a mill on the lands of another, and the like.
The case of Boggs v. Varner, 6 Watts & Serg. 469, is a very clear, strong and well-considered case, involving the questions here presented. Both parties deduced their title from on.e John Irwin. John Irwin conveyed to John Boggs, who sold by parol to William Boggs, the plaintiff’s ancestor. William Boggs ..entered and continued his possession, until 1822, when he went down the Ohio, taking his family with him, but leaving the house and some of his furniture in the care and custody of his sister, intending to return, but he did not. The sister rented the property to a man named Steel, who continued to occupy it until the house and furniture were consumed by fire, in 1825. The defendant Varner claimed under a deed executed by John Irwin, dated
Upon this the court'said: “It must be remembered that at the time of the purchase in 1828, no person was in possession, and that the property had been vacant from the time of the fire in 1825, a period of three years. Had any person been lining on the property when it was bought by Yarnef, it is conceded it would be notice to the purchaser; for where there is a clear and unequivocal possession, it is constructive and legal notice, because it puts the purchaser on inquiry. 2 Watts, 275. But to whom must the nendee resort for information of title? Undoubtedly to the per son in possession when the bargain is made; for if the possession is vacant, it supersedes the necessity of further inquiry, for no case has yet been ruled which extends the doctrine of constructive notice so far as to visit him with all the consequences of notice, because he may have known a person to have been in possession at «any distant period of time before his contract. The law is not so unreasonable, and upon this point we do not wish to extend it further.
“The other parts of the offer were also properly overruled. There is no case yet where a jury has been permitted to infer the fact of notice, merely because the purchaser lived on the adjoining lot to the owner, or was intimate with him, or because it was notorious in the neighborhood that he was the owner. The evidence is too general, uncertain and indefinite to destroy a title
And I invite particular attention to the case of Mechan v. Williams, 48 Pa. St. 238, to the facts and to the opin
In Campbell v. Brackenridge (8 Blackford, 471) the equitable owner had taken possession of the lot, built a house upon it, moved into the house, and lived there for three months. He then moved out of the house, leaving it unoccupied, 'and about two months afterward the other party acquired the title. It was held no notice. The court say: “A purchaser, when the possession is vacant, is not bound to inquire of the late occupier what was the nature of his title, and will not be held to have implied notice of the information which he might have obtained by inquiry.”
And the same rule was held by Sir J. Leach, V. C., in Miles v. Langley (1 Russ. & Myl. 39), that, if the possession is vacant, the purchaser is not bound to inquire.
And, in Smith v. Yule (31 Cal. 180), one of the points
These authorities are directly to the point, and fully sustain the positions for which I contend; and I know of none to the contrary. There are, no doubt, some loose and ill-considered cases in .the books upon this subject of notice, and it is not impossible, in the multitude, that some may be found sustaining or seeming to sustain contrary doctrines ; and if there be, it is because they are not well considered, and not because these doctrines are not the sound and true ones.
To the authorities above cited I would add the following : Cook v. Travis, 20 N. Y. 402, 403; Hewes v. Wiswell, 8 Greenl. 94 ; Scott v. Gallagher, 14 Serg. & Rawle, 333; Billington v. Welsh, 5 Binney, 132; Hanrick v. Thompson, 9 Ala. 409 ; Plumer v. Robertson, 6 Serg. & Rawle, 184; Fort v. Burch, 6 Barb. 60, 78; Cook v. Travis, 22 id. 338, 359 ; Siter v. M’Clanachan, 2 Gratt. 280, 313 ; Grimstone v. Carter, 3 Paige, 421; Great Falls Co. v. Worster, 15 N. H. 412 ; Bell v. Twilight, 2 Foster, 519 ; Dickey v. Lyon, 19 Iowa, 544.
Some stress is laid in the opinion upon the value of the improvements. I certainly need not dwell upon that, since the question of notice or fraud is in no possible way affected by it. The purchaser in good faith without notice buys and pays for the improvements with the land, and his title is certainly not to be defeated because they may have been of more or less relative value.
I think the judgment below should be reversed.
By the Court. — Judgment affirmed.