Lawe v. Hyde

39 Wis. 345

• Court: Wisconsin Supreme Court
• Decided: January 15, 1876
• Status: Published

Opinion

The following opinion was filed February 29, 1876.

RtaN, C. J.

The complaint purports to be against Mr. Lawrence, the grantee of the respondent, the University and the appellant, in equity, for reformation of the condition subsequent in the respondent’s deed, for forfeiture for condition broken, and for possession. Aside from the statute of limitations, a proceeding in equity to enforce a forfeiture cannot be sustained. Clark v. Drake, 3 Pin., 228.

The case was argued at tbe bar as an action of ejectment for forfeiture for breach of the condition as it stands in the deed. And it was stated that the respondent had abandoned his equitable proceeding, discontinued as to Mr. Lawrence and the University, and was prosecuting the case against the appellant alone, as an action of ejectment.

The return does not disclose such discontinuance, or any action of the parties or of the court below tending to change the character of the cause. The question therefore is not here, whether, under the code, such a change of a suit in equity into an action at law may be made. See note of Dixon, C. J., to Brayton v. Jones, 5 Wis., 627, 2d ed. Of course this can be done by consent; but in the meantime, we do not feel authorized to decide the questions argued on this appeal, when they are not raised by the record before us. The questions are important in principle and to the parties. And both parties appear anxious for a decision of the case upon the merits. It was well and fully argued on both sides, and, if properly before us, we are prepared to pass upon it. Ve have therefore concluded to reserve our judgment long enough to give the parties an opportunity to amend the record by stipulation or otherwise, so that the cause may stand as an action of ejectment by the respondent against the appellant. If such amendment of the record be made, we will pass upon the questions submitted, without further argument; otherwise we will decide the case as it now stands in the record.

Judgment reserved.

The following opinion was filed March 21, 1876.

Ryau, 0. J.

Upon the suggestion made in the former opinion on this appeal, the parties have since filed a stipulation that the action shall stand as an action of ejectment by tie respondent against the appellant for the recovery of the-premises in controversy. We hold the stipulation as supplying any missing formal averments required by the statute in complaints of that character, and shall consider the complaint as a special complaint in ejectment, setting out the respondent’s title. The statute does not require, but does not prohibit, such special complaints. And it seems a proper form ■when, as in this case, the rights of the parties appear to depend wholly upon questions of construction for the court. See Sage v. McLean, 37 Wis., 357.

The statute authorizes an equitable, as well as a legal, defense in ejectment. An equitable defense generally, if not necessarily, concedes the legal title in the plaintiff. And,, with a view of bringing together the legal title and the possession, an equitable defense can be made by counterclaim only. Lombard v. Cowham, 34 Wis., 486; Dupont v. Davis, 35 id., 631.

The appellant’s counterclaim in this case rests clearly on his legal title, setting up no equitable defense. Judgment for him on his answer would be equivalent to the affirmative judgment prayed by his counterclaim. And it looks like an incongruity to pray that the respondent should release to the appellant a claim of title which the appellant maintains to be void on its face, without color of right. If such a counterclaim could be supported, we do not perceive why every defendant in ejectment might not counterclaim a release from the plaintiff Such a counterclaim is very distinguishable from that in Jarvis v. Peck, 19 Wis., 74. We must hold this counterclaim ill taken.

The effective difference between a mere answer and a counterclaim is familiar to us all. But the essential distinction between them as pleadings does not appear to be so clear. The question whether a demurrer to a counterclaim would reach back to the complaint is suggested, but not decided, in Dietrich v. Koch, 35 Wis., 618. Generally, perhaps, the answer proper and counterclaim are indistinguishable, as in that case, where the demurrer was held to reach back to the complaint, through the same pleading of the defendant as an answer. See Benedict v. Horner, 13 Wis., 256; Congar v. Chamberlain, 14 id., 258; Jarvis v. Peck, 19 id., 74; McConihe v. Hollister, id., 269; Matteson v. Ellsworth, 28 id., 254; Resch v. Senn, 31 id., 138; Lombard v. Cowham, supra, and many other cases in this court. The distinction has been so slight that it has sometimes been a nice question of construction whether the pleading be an answer proper or a counterclaim or both in one. But aside from all rules of construction, the statute itself appears not only to make a counterclaim a pleading to the complaint, but to make it essentially an answer in all cases; for it requires the answer to set up new matters constituting defense or counterclaim. Whatever may be its effect by way of cross action, it is certainly a pleading to the complaint. And the old rule that demurrers reach back to the first defective pleading still applies where the complaint discloses want of jurisdiction or fails to state a cause of action (Lawton v. Howe, 14 Wis., 241; Ferson v. Drew, 19 id., 225; Eaton v. North, 25 id., 514); and demurrers to returns to original writs go back to the petition or information on which the writ issued. State v. Tierney, 23 Wis., 430; State v. Braun, 31 id., 600; State v. Supervisors, 34 id., 169. So the demurrer here reaches the merits of the complaint, and brings us to the real question in the cause.

The omission of the grantee’s name immediately after the operative words of grant in the respondent’s conveyance is cured by the habendtim to the grantee, his heirs and assigns. Jamaica, etc., v. Chandler, 9 Allen, 159.

“ Conditions regularly follow the heibendum, but are good in law in any other place.” Horner v. Railway Co., 38 Wis., 174. This was always the rule. Cromwell’s case, 2 Rep., 696.

The respondent’s deed is therefore a good conveyance in fee, upon condition subsequent. Co. Litt., 201a. And tbe question here is tbe construction of tbe condition.

Tbe rule of construction is old, certain and uniform. “ Conditio benefiaiaMs, gum statum aonstrmt, benigna, seaim-dum mrbormro mtentionem est i/ntergpretanda/ odiosa autem, guoe statum destruit, striate, secundum verborum ggrojprieta-tem, aooipienda” (Fraunces’ case, 8 Rep., 89b; Co. Lit., 218a); “as strictly as tbe words of any penal statute,” as said in Rungun v. Fogosse, 1 Plowd., 1; Jackson v. Silvernail, 15 Johns., 278; Hadley v. Hadley, 4 Gray, 140; Morse v. Ins. Co., 30 Wis., 534.

At tbe date of tbe respondent’s conveyance, tbe Lawrence Institute, since called tbe Lawrence University, was incorporated, to be located witbin certain limits, wbicb include tbe land conveyed, at sucb place as tbe trustees of tbe corporation should select, and to be erected on a plan sufficiently extensive, etc. Session Laws of 1847, p. 5.

Tin's location clearly intends tbe selection and acquisition of tbe site of tbe structures for tbe use of tbe university. And we have do difficulty in bolding tbe site so to be selected and acquired to be what tbe condition of tbe respondent’s deed requires to be maintained. Tbe location of tbe charter and tbe maintenance of tbe deed both refer to tbe site of tbe proposed university.

Neither could well refer to existing structures for a university. Even tbe village of Appleton, tbe forerunner of tbe present city, does not appear to have been yet founded; certainly not incorporated. Ch. 96 of 1850; ch. 127 of 1853. Tbe proposition of tbe charter was to found a seat of learning in tbe wilderness. A site could be presently selected and acquired; but a naked site only, for future structures. So tbe charter says', and so tbe deed implies.

Tbe location of the- charter was a proceeding m gyrimcypio, without antecedent. But tbe maintenance of tbe deed implies, as an antecedent, location under tbe charter, Maintenance presupposes existence, as a condition absolute. "Wbat is m posse cannot be maintained, but only wbat is m esse. Tbe university might be located, anytime, anywhere, witbin the terms of tbe charter. But it could be maintained nowhere until it bad been located somewhere. Tbe rule of construction will not permit us to enlarge tbe word used, in aid of tbe condition, so as to import that the university shall be first located and thereafter maintained, witbin tbe limits indicated. Tbe condition requires maintenance only, implies location under tbe charter already made, and rests on tbe maintenance of that.

It is indeed the university which tbe condition requires to be maintained. If tbe sense were an extant university, with its grounds, buildings, library, apparatus, faculty and students, to constitute it one, the condition might well be, as presently suggested, void for impossibility. But we must construe words according to tbe conditions under which they are used. Tbe site of a university is a part of it. A site indeed is tbe first requisite for it. And a site selected and acquired for a prospective university, presently to be raised upon it, might well be regarded as an inchoate university; and as such could be maintained. We do not see wbat else tbe term could mean under tbe circumstances; and it can mean that.

The condition provides reverter of the estate granted, upon failure or removal. Removal plainly means removal of tbe site of tbe university elsewhere. Failure appears to mean failure to establish the university upon the site. Tbe rule of construction will not warrant tbe introduction of another antecedent for tbe word, so as to signify failure to locate. Maintenance-is tbe antecedent of both words; removal of tbe university to another site, and failure to establish it on this site, appear equally to violate tbe condition to maintain on this site. Tbe object of the condition is tbe maintenance of tbe site of tbe university. Change of site or failure of tbe university alike defeat tbe object.

There is no limit of time in the condition for its operation. It funs from the delivery of the deed. If it related to a university in actual operation, or if, at the date of the deed, the location of the university had not been made, or had béen made elsewhere than the condition indicates, it might be a grave question whether the condition would not be void, as uncertain or impossible. Co. Lit., 206 a, b, 219 a; 2 Greenleaf’s Cruise, 4; Washb., 441.

And the most favorable construction, and we hold the time construction, of this condition is that it relates to a site selected for the university under the charter.

As the condition implies a location made, so it implies where it has been made. And it is very apparent that it is not on the land conveyed. Whether the conveyance was drawn by skillful or unskillful persons, if the condition related to location on the land conveyed, present or future, it would have been the most obvious and easy thing to say.

If such had been the object of the conveyance and of the condition, it is' almost incomprehensible that it should have been overlooked or left to argumentative inference. It appears to us that no person of sufficient intelligence to draw the deed, lawyer or layman, could well avoid direct expression of so radical and vital a fact, so readily made; and go out of the way, in more difficult circuity of language, to obscure the intent. Indeed not to obscure it, but to negative. For the condition specifies the land to revert upon breach, “ the said land,” that is the land conveyed, which is part of section twenty-six, but provides for the maintenance of the university on section twenty-six, at large, without limit of part, implying anywhere within the section. It says section twenty-six as above described, and so it is above described, as a section may best be, by its town and range; but it says, in that regard, neither lot one nor lot two, nor “ the said land ” in the section, but the section itself, absolutely, without other description or limitation. We cannot hold the section as above described to mean some thirty acres of the section above described. Words, expressing the whole cannot, to aid a forfeiture, be held to intend a part only; they include the part, but are not limited to it. The two descriptions, section twenty-six as above described, and the said land, stand in apparent ■contrast, signifying different things. If the conveyancer had intended the same thing, he must have chosen language to ■conceal and not to express the intention. The two phrases, so used, could not well be forced by any rule of construction into one meaning. Certainly not to aid a condition subse-cjuent inserted by a grantor in his conveyance, and set up by him to defeat his grant. Verba.chwrtcvrwm forthos acdpwm-■tur contra proferentem.

The respondent’s conveyance is to Mr. Lawrence, for the benefit of the university. Benefit is here equivalent to advantage, not to occupation; advantage by occupying, renting, •selling, or otherwise. Benefit includes occupation, but is not ■confined to it.' It is a broad word. A devise of the benefits of real estate for a term, under a will devising the fee elsewhere, appears to have been held to vest an estate in the land for the term. McCullough's Appeal, 4 Yeates, 23. Here the word seems to include any beneficial use which may be made of the fee simple. And here again it is difficult to comprehend, if the purpose of the grant was a site for the university, how the conveyancer, expert or inexpert, contrived to miss some direct, definite and obvious word signifying site, ¿ind to lose his meaning in so large and almost indefinite a word as that used.' And so the deed, outside of the condi-fion, is in striking accord with our construction of the condition itself.

If we had been able to adopt the respondent’s construction, we are not at all sure that it would have availed him. For it appears that the university is maintained on part of the land conveyed. And it is not certain that the sale of the other part would work a breach of the condition and a reverter of the whole. Eor it seems that such, a condition must defeat the whole estate or none. Shep. Touch., 127; Cabet's case, 1 Rep., 83 b; 2 Greenleaf’s Cruise, 3. And it might be difficult to enforce forfeiture of an estate in land for failure to maintain on it what is maintained on part of it.

“ This condition, like every condition to defeat an estate, must be construed strictly, not to say literally. If the grantors intended more, they should have expressed it.” Hadley v. Hadley, supra. If it was the intent that the university should be located and maintained on the land conveyed, and that all the land conveyed should always be used as a site for the university, and no part of it for any other purpose, we can only say that the condition fails to express such intent.

In our view, there does not appear in the complaint any breach of the condition subsequent in the respondent’s deed, to work a reverter. The complaint therefore fails to state- a cause of action, and the demurrer should have been sustained to it.'

By the Court. — The order of the court below is reversed, and the cause remanded with directions to sustain the demurrer to the complaint.

LyoN, J., took no part in this case, having been a trustee of the Lawrence University during some of the proceedings involved.