Elofrson v. Lindsay

63 N.W. 89, 90 Wis. 203, 1895 Wisc. LEXIS 261

• Court: Wisconsin Supreme Court
• Decided: April 23, 1895
• Status: Published

Opinion

FTbwman, J.

It was not competent to receive evidence to show that the conveyances were intended to cover and include the strip of land in controversy. The rule is that parol evidence to vary the terms of a written instrument, or to show an intention contrary to that disclosed upon its face, is not competent, unless there is ambiguity in the instrument itself. Hubbard v. Marshall, 50 Wis. 322; Hei v. Heller, 53 Wis. 415; Scholz v. Dankert, 69 Wis. 416; Liebscher v. Kraus, 74 Wis. 387; Morss v. Salisbury, 48 N. Y. 637; Hill v. Priestly, 52 N. Y. 635; Hartt v. Rector, 13 Mo. 497; Browne, Par. Ev. 199, 200, and cases cited. The description of the premises in the conveyances produced by the plaintiff was entirely free from ambiguity. Nothing could be added or subtracted which could make it more certain. ' And the premises described could be readily identified by a survey. The description was evidently a mistake. But evidence that it was a mistake, or to change the description, is incompetent in an action at law. The proper remedy for the correction of such a mistake is an action in equity for that purpose. In an action at law it must stand as it is written. Casgrain v. Milwaukee Co. 81 Wis. 113.

It is also well settled that, where the description of the premises in a deed is definite, certain, and unambiguous, extrinsic evidence to show acquiescence in a different location, is inadmissible, unless such practical location is followed by an adverse possession for such a length of time as to bar an action for the recovery of the lands. Browne, Par. Ev. 322, and cases cited. It is only in cases where the description in the deed is uncertain and doubtful that evidence of a practical location, followed by adverse possession, is competent to show the intention. When a definite boundary is fixed by the grant, it must govern in all cases. Hartung v. Witte, 59 Wis. 285, 290, 291. This doctrine is recognized in many cases. Messer v. Oestreich, 52 Wis. 684; Whitney v. Robinson, 53 Wis. 309; McMillan v. Wehle, 55 Wis. 685; Coe v. Manscau, 62 Wis. 82; Meade v. Gilfoyle, 64 Wis. 18; Lundgreen v. Stratton, 73 Wis. 659.

So it is clear that the plaintiff failed to show a paper title to the strip of land in dispute. He also failed to show title by adverse possession. His possession was without color of title and falls short of the statutory period, Avhile the fact that he had no written conveyance leaves him without aid from the prior possession of his predecessors in 'possession. Graeven v. Dieves, 68 Wis. 317; Ablard v. Fitzgerald, 87 Wis. 516. But he did show actual possession of the strip. This is sufficient evidence of title to sustain his action, until the defendant has shown a better title. Bates v. Campbell, 25 Wis. 613; Swift v. Agnes, 33 Wis. 228, 240; Hammer v. Hammer, 39 Wis. 182; Hacker v. Horlemus, 74 Wis. 21. If the defendant’s tax deed was valid it shows a better title. But. its validity depends upon the question whether the premises were occupied as provided by law during the time preceding the taking of the deed. This is in dispute and doubt upon the evidence. It is also in dispute and doubt whether the defendant intruded into the premises, or whether he entered with the consent of the plaintiff. These questions should have been submitted to the jury. It was error not to submit them.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.