Parker v. Kane

4 Wis. 1

• Court: Wisconsin Supreme Court
• Decided: June 15, 1856
• Status: Published

Opinion

By the Court,

Crawford, J.

The disposition of this case demands that we shall discuss only a few of tbe points made and insisted upon by counsel in tbe argument.

The first question to be noticed, has reference to tbe original transaction between Dunbar and Montague. Tbe former executed and delivered to tbe latter a deed of conveyance of tha undivided one-half of certain lands, now embraced in the limits of the city of Milwaukee; and after the making of this deed, Dunbar purchased from Montague an undivided one-half of the interest in the lands which be had previously conveyed to Montague. The deed from Dunbar to Montague not having been recorded, as the statute upon the subject of conveyances of real estate required, it was agreed between them that this deed should be returned to Dunbar and destroyed, and that a deed of an undivided one-fourth of tbe lands should be executed and delivered bj Dunbar to Montague, which was done, and the first deed was accordingly returned and destroyed.

There is no doubt in our minds that the cancelation or destruction of a deed of conveyance of lands, by the consent and agreement of the parties to it, cannot operate to revest the title in the grantor. The execution and delivery of a deed of conveyance of these.lands, as between the grantor and grantee, vested the estate in the latter; but the voluntary destruction of the instrument by the consent of the parties, could not pass the estate back again, because the transmission of title to real estate, at the time of the original transaction, could only be by deed of conveyance in writing. The mere act of destroying the evidence of the title in Montague, could not disturb the title itself, and so far as Dunbar was concerned, it was fully vested in his grantee. The general current of authority, English and American, sustains this view of the question. Vide Roe ex dem. Berkley vs. The Archbishop of York, 6 East, 86; Bolton vs. Carlish, 2 H. Black. 259; Doe vs. Hirst, 3 Stark. N. P. 60; Gilb. Ev. 110, and notis; Doe vs. Bingham, 5 B. & A. 677; Jackson vs. Chase, 2 John. 84; Lewis vs. Payne, 8 Cow. 71; Jackson vs. Gould, 7 Wend. 364; Raynor vs. Wilson, 6 Hill, 469 ; Botsford vs. Morehouse, 4 Conn. 550 ; Gilbert vs. Bulkhy, 5 Conn. 262; Marshall vs. Fisk, 6 Mass. 24; Chessman vs. Whittemore, 23 Pick. 231.

But although the estate remains in the grantee as against the grantor, notwithstanding the voluntary destruction of the deed) yet we see no means by which, in view of the statute of frauds, and the rule of evidence created by that statute, the grantee in a deed of lands who has voluntarily and without fraud or mistake, destroyed his deed, can establish or prove his title.

It is not like the cases of the loss of an instrument, or its destruction by accident or mistake, in either of which cases secondary evidence would be admissible, but it is an attempt to supply the place of written evidence of the transmutation of real estate, as required by the statute of frauds, by parol proof of the contents of a deed, which the party had, by his own act, voluntarily destroyed. In such a case he is not at liberty to subvert the rule of evidence, and by his own volition, having placed the higher grade of proof beyond reach, insist that he is therefore entitled to introduce an inferior grade of proof which tbe statute interdicts. Vide Farrar vs. Farrar, 4 New Ramp. R. 191.

But it is unnecessary to pursue this branch of the subject, in» asmuch as we view the case of the complainant, as made out by the pleadings and proofs, entirely based upon a mistake committed in the description contained in the deed from Dunbar to Montague, dated December 18, 1837, and not at all affected by the cancelation of the prior deed.

Tbe next question which has occupied our attention, is whether there is sufficient evidence of such a mistake in the second deed of Dunbar to Montague, bearing date December 18, 1837, and in the deed of Montague to Phineas Fisk, bearing date October 27, 1842, as the present complainant claiming under and through these conveyances, may invoke a court of equity to correct. As a part of the proofs in this case, the deposition of tbe defendant Montague was taken and read in evidence subject to exceptions, and in order to render him competent as a witness, a release under the hands and seals of the complainant (Joel Parker), and one John P. Chapin, was produced and filed. The case shows that on the 13th day of January, 1838, Montague and his wife conveyed by a warranty deed, to John P. Chapin, his heirs and assigns, an undivided sixteenth part of certain lands, includ. ing the tract now in controversey, which deed was duly recorded • and that on the 18th day of May, 1841, the said Chapin and his wife conveyed the same interest to the complainant, and the last-named conveyance was likewise recorded. It also appears that Montague, by deed containing the usual covenants of seizin and general warranty, and bearing date the 27th day of October, 1842, -conveyed to Phineas Fisk, his heirs and assigns, “ an undivided three-sixteenths of lots one and six, being that part of the northeast quarter of section 21, town 7, range 22 east, lying east of the Milwaukee Riverf and by divers mesne conveyances from the several heirs of Phineas Fisk, the last-mentioned interest so far as it embraced the southwest quarter of the quarter section, became vested in the complainant. The above-described quarter section of land is situated partly on the east side of the Milwaukee River, and partly on the west side of the same, but the lots numbered one and six, particularly described in the deed from Montague to Fisk, do not embrace the whole of that part of the quarter section lying east of the river, there being the southwest quarter of said quarter section, also on the east side of the river, the one-fourth of which last-mentioned tract is now in dispute. By the release from Parker and Chapin, we find that Montague was discharged from all claim and demand which either Parker or Chapin had or might have against him by reason of any breach of the covenants contained in his deed to Chapin, bearing date January 13, 1838.

This release, so far as Chapin was concerned, unquestionably discharged Montague from” all liability; but it is not quite so apparent that it would have a like effect in view of Montague’s covenants in his deed to Phineas Eisk of three-sixteenths of the property which, by subsequent conveyances bjj- the heirs of Eisk to Parker, would enure to the benefit of the latter, and might be pursued in him in case of a breach of any of the covenants. But, however this may be, it is clear that in no event could Montague be held liable by reason of a decree in this cause either granting or refusing the relief prayed. If the relief were granted, and the mistake in the description of the property corrected, there would be no injury suffered by.the persons claiming under Montague, for which they or any of them could maintain an action against him on his covenants to Eisk; while on the other hand, if the relief were denied, his deed to Eisk would remain unchanged, and he would not be liable, because no ¡parol proof could be introduced to extend the covenants in his deed to any other lands than those described in the deed, and there is no pretence that so far as the lots described in that deed are concerned, any violation of Montague’s covenants has taken place. His deposition was, therefore, proper evidence in the case. The material equities of the complainant’s bill are adequately proved by the testimony of Montague, Milton Kilbourn, Joshua Hathaway and Benjamin E. Adams, and by the deeds of conveyance. No element of fraud on the part of Dunbar is observable, but the proofs show that when Dunbar had conveyed one-fourth of that part of the quarter section lying east of the river, to Oliver Holman, and had executed the second deed to Montague (in which the complainant claims that a mistake in the description was made), he considered that only one-half of the whole property belonged to him. It is needless, in the present condition of the case, to animadvert upon the proofs on this branch of the case.

The next inquiry relates to the evidence of notice or informar tion of the condition of the title brought home to the defendant John H. Tweedy.

In his answer, this defendant says that he read the record of the deed, from Dunbar to Montague, mentioned in the bill, and that he noticed the description' in the deed, “ that he has some recollection that Mr. Ogden called his attention to the language of that description, with the remark that he had once made an abstract of the title of the said premises, originally entered by Dunbar, for Mr. Crocker and Mr. Hathaway, who represented some of the owners; that the abstract showed a less interest in those claiming under Montague, than he or they supposed them to be entitled to, and that Mr. Hathaway suggested that there might be a mistake in the description of the deed of Dunbar to Montague." These conversations w'ere -had before the purchase by Kane in which Tweedy acquired his interest. And again he says in his answer: “ And this defendant further saith, that except as hereinbefore set forth, he had not, at the time of the said purchase of the premises in dispute, any ¡notice or information as to the claim of said complainant and others, to his recollection and belief; but defendant admits that it is not improbable that he may have had conversations on the subject, which have es. caped his recollection.” The testimony of Joshua Hathaway and Thomas L. Ogden, shows that Mr. Tweedy was, in conversations with each of these witnesses, informed that there was a claim to a portion of the land now'in dispute, on the part of Mr. Parker and others, and that they paid the taxes upon the further interest so claimed. Mr. Hathaway swears that he is confident that he stated in the conversation, that “it was through the contradictory description contained in one of Dunbar’s former deeds,” and thinks he said the further interest claimed by the parties he represented, “ would have to be adjudicated;” and Mr. Ogdenjswears, “ I think I told Tweedy I should think there had been' a mistake either in the deed of Dunbar to Montague, or Montague to Chapin.”

This, we think, was notice to Tweedy, fully calculated to ap« prise him that the title to the property which he was about to purchase, was in dispute, and to put him upon inquiry. The records of the different deeds concerning this property, were within his reach, and from them he could learn, and did learn, that a discrepancy and mistake existed in the title — the agent of the complainant, and of others claiming under deeds purporting to give them an interest in the tract in dispute; and the attorney with whom he conversed, having directed his attention to the adverse or conflicting claim.

Sir Edward Sugden, in his work on Vendors and Purchasers (Poi. II, p. 290), says: “What is sufficient to put a purchaser upon an inquiry, is good notice; that is, where a man has sufficient information to lead him to a fact, he shall be deemed conusant to it.” In Strong and wife vs. Arden and others (1 John. Ch. 261), Chancellor Kent, in speaking of a purchase by one of the defendants, says: “ I shall also consider him as a purchaser, without actual notice of the settlement upon the plaintiff. He declares in his answer that lie had no knowledge or notice of the conveyance of 1805, when he purchased, and there is no proof to contradict this answer. But I hold him chargeable with constructive notice, or notice in law, because he had information sufficient to put him upon*inquiry. He admits that, before the execution of the deed, he had heard that the grantor had made some provision for his daughters out of the property in Greenwich street; and there is no evidence in the case that the grantor owned any other property in that street, except the lots included in the settlement.” Chancellor Walworth, in Tuttle vs. Jackson (6 Wend. 213), says: “ Whatever is sufficient to make it his (the purchaser’s) duty to inquire as to the rights of others, is considered legal notice to him of those rights.”

It is true, that mere rumor or suspicion of a defect in the title, or an outstanding interest in a third person, would not be sufficient to operate as constructive notice: but where land is claimed under a deed, the grantee in which openly and notoriously affects to control it as his property, and pays the taxes assessed upon it, we can esteem this no less sufficient to put a purchaser upon inquiry, than if the land were in the possession of a tenant or any third person who might claim as a purchaser under an. unrecorded deed. We must, therefore, consider Tweedy chargeable with notice in law, of an outstanding claim or interest in the complainant, in the same manner that Dunbar’s heirs would have been, from whose guardian he acquired title.

But, although Tweedy is thus held, we are not disposed to consider that the notice to him would affect those who became tenants in common with him by virtue of Kane’s purchase. Kane was the purchaser at the guardian’s sale, for the benefit of himself, Tweedy, Becman and Brown, and the property was conveyed to Kane by Martineau, the guardian, under the direction of the Circuit Court of Milwaukee county. Afterwards Kane conveyed three-fourths (undivided) to Tweedy, Becman and Brown, and thereupon they all became tenants in common. The notice to Tweedy, one of the tenants in common, was not notice to his co-tenants. Vide Wiswall and Price vs. McGown and others, 2 Barb. S. C. 270; Snyder vs. Sponable, 1 Hill, 567.

We find that before the commencement of this suit, the defendant James S. Brown had sold and conveyed all of his interest in the property to another of the defendants, Charles I. Kane, and by his answer, Brown disclaims all title, so that he must be dismissed from the case. Another of the original defendants in this cause, Carl Becman, died after the filing of the bill, and by a supplementary bill, David H. Waldo, a purchaser from Becman, pendente, lite, was made a defendant.

The defendants Kane and Waldo, severally rely and insist upon the lapse of time as a defence under the statutes of Wisconsin, as well as under the rule which prevails in courts of equity, in analogy to the rules of the courts of law. Section 4.0 of the act concerning the time of commencing actions, contained in the Revised Statutes of Wisconsin territory, provides that “Bills for relief, in case of the existence of a trust, not cognizable by the courts of common law, and in all other cases not herein providedfor, shall be filed within ten years after the cause thereof shall accrue, and not after.”

The cause or matter of complaint, to relieve him from which the complainant filed his bill in this case, originated in a mistake committed in the descriptive part of a deed, executed on the 18th day of December, 1887, and immediately after the execution and delivery of that deed to Montague, and those who might claim under him had a right to file a bill in chancery to correct the mistake so made. The cause for such a bill had accrued and was complete upon- the delivery of the defective deed, and although at the time of its execution and delivery, the statute of limitations above cited was not enacted, yet after the passing of the act, and after it went into operation, a sufficient and reasonable portion of the period of limitation was still unexpired within which a bill might have been filed by the party entitled to file it. In such a case the territorial act was applicable, and it was essential, in order to avoid the operation of the act, that the bill should be filed within ten years after the making of the deed in 1837.- This construction in no way trenches upon any constitutional provision. It is the province of the legislature to prescribe the manner and time in which remedies shall be pursued in our courts, provided some remedy be given, and some reasonable time be provided within which such remedy may be sought, and in this case ample opportunity was afforded to Montague or his assigns to apply for relief. From the time when the act of limitation took effect (July 4, 1839), until the death of Dunbar in 1840, abundant time was afforded to Montague, and those claiming through him, to apply for relief, but they neglected to do so, and we think the bar created by the statute may be successfully interposed in this case. The viéw which we have here taken of the operation of the territorial act will be found to be sustained by the following cases: Spoor vs. Wells, 3 Barb. Ch. Rep. 199; Sayre vs. Wisner, 8 Wend. 661; The People vs. Supervisors, &c., 10 Wend. 363 ; Lewis vs. Lewis, 7 How. 776 ; Story’s Conflict Laws, §§ 576 to 580 ; McElmoque vs. Cohen, 13 Pet. Rep. 312;- Smith vs. Morrison, 22 Pick. 430.

This cause was instituted on the 10th day of January, 1851, long before which time the limitation of the statute had created a bar to the matters complained of in the present case, in favor of such of the defendants as chose to avail themselves of its protection by claiming its benefits by plea or answer.

We have already seen that Tweedy, having had constructive notice, must be held to respond to the equities of the complainant, and as he has not shielded himself by the statute of limitations, he cannot receive its protection. In like manner the defendant Martineau, as the guardian of the heirs of Dunbar, having moneys, the proceeds of the sale of the property in question, in his hands, which he admits by his answer, without relying upon lapse of time as a defence, must be held to account to the complainant for the proceeds in his hands at the time of the filing of the bill.

A question of some moment was raised in argument, relating to the principle of caveat emptor, as applicable to judicial sales; but the views which we have taken above preclude the necessity of discussing this question. . .

Prom an examination of the whole ca^e, we believe that the decree of the Circuit Court, so far as it relates to the defendants Charles I. Kane, David H. Waldo and James S. Brown, ought to be affirmed, with costs to said defendants, and, so far as it relates to all of the other defendants, the said decree ought to be reversed, with costs to the complainant, and the cause remanded for further proceedings.