Whitney v. Robinson

10 N.W. 512, 53 Wis. 309, 1881 Wisc. LEXIS 260

• Court: Wisconsin Supreme Court
• Decided: November 3, 1881
• Status: Published

Opinion

Cassoday, J.

The plaintiffs claim to the title of the land in question is based upon the sheriffs deed of December 20, 1879, given on the foreclosure of the mortgage executed by Butler March 23, 1874. It is conceded that neither of the churches, nor any of their trustees named in the lease given by Butler to them November 16, 1863, were parties to that foreclosure. .This being so, and the fact appearing, as it does, that at the time of the execution of the mortgage there was a building upon the premises in question, in the possession, and occupancy of said societies and their trustees, under the lease, as a church, with a fence between those premises and the balance of Butler’s land, it becomes very evident that the plaintiff only acquired through such foreclosure such right, title and interest as Butler had at the time of making the mortgage, March 23, 1871. The purpose of that foreclosure was merely to shut out and forever bar and destroy the equity of redemption existing in Butler, and those claiming under him subsequent to the execution of the mortgage. In the language of HakRis, J., in Holcomb v. Holcomb, 2 Barb., 23, “'the object of 'the bill [to foreclose] is to vest in the purchaser under the sale, made by virtue of the decree of foreclosure, the same title which the mortgagor had at the time of the execution of the mortgage.” See Tallman v. Ely, 6 Wis., 244. But it would have been improper to have made the churches or their trustees parties to that foreclosure, for the simple reason that their occupancy and possession began long prior to the mortgage, and had continued ever since, under a lease executed by Butler ten years prior to the execution of the mortgage. Had they "been made parties, such prior right could not have been controverted in such foreclosure suit. Strobe v. Downer, 13 Wis., 14; Pelton v. Farmin, 18 Wis., 222; Corning v. Smith, 6 N. Y., 82; E. I. S. Bank v. Goldman, 75 N. Y., 127.

It is claimed that the description in the lease is void for uncertainty, because it fails to state the section on which the land is located, and that it should therefore have been rejected, and no parol evidence admitted in aid of it. But this court has .quite recently held that a deed with a description otherwise ambiguous and uncertain should be construed with reference to the actual rightful state of the property at the time of its execution, and that for that purpose extrinsic evidence may be admitted in order to place the court in the position of the parties at tbe time of making tbe deed, arid tlms enable the court or jury to intelligently interpret the language used. Messer v. Oestreich, 52 Wis., 684. Under this rule it was clearly competent to prove tbe situation of tbe premises in question, and tbe location and description of Butler’s land at the time; and then, if, in the light of such contemporaneous facts and circumstances, tbe description in tbe lease became definite and certain, it was most certainly proper to admit the same in evidence, if not otherwise incompetent. Here tbe grantees named in the lease went into possession of the land in 1863, and built a fence between it and the balance of Butler’s land, and constructed thereon a meeting-house or church, and occupied the same as such from that time to the time of the trial; and by so doing we must hold, within the principles of Messer v. Oestreich, supra, that the parties to the lease must be deemed to have given a practical construction to such lease, which is binding upon Butler and those claiming under him.

It is claimed that the lease and all evidence in relation to the churches should have been rejected, for the reason .that there was no sufficient evidence that either of the churches had any legal existence. The only evidence of incorporation, aside from the acts stated, is a copy of the original record of the certificate of incorporation of the First Free-Will Baptist Church of Grand Prairie, town of Mackford, bearing date April 3,1862, purporting to be signed by two persons appointed by a majority of the male persons of full age belonging to the society, at a meeting thereof March 29, 1862, as appears of record in the register’s office of Green Lake county, and which copy is certified to by the register of deeds of that county. Whether the certificate is sufficient to prove the incorporation or not, or whether any defects in it are cured by chapter 94, Laws of 1879, it seems to be unnecessary to determine. In Franklin v. Twogood, 18 Iowa, 516, it was held that “ the execution of a mortgage to a corporation is an admission of its corporate existence, and estops the mortgagor from denying the same.” To the same effect are Nat. Bank of Fairhaven v. Phœnix W. Co., 6 Hun, 71; Parish v. Wheeler, 22 N. Y., 494; Palmer v. Lawrence, 3 Sandf. S. C., 162; Dutchess Co. M. v. Davis, 14 Johns., 238.

In Den v. Van Bouten, 10 N. J. L., 270, it was held that, £iin an action of ejectment brought by the assignee of a mortgagee against a mortgagor, upon a mortgage given to a corporation, it is not necessary to produce the charter of incorporation. The admission by the defendant himself, in -•thedeed of mortgage, is sufficient proof, when uncontradicted, of the existence of the incorporation.”

In the Congregational Society v. Perry, 6 N. H., 164, it was held that “ he who gives a note to a corporation is not to be permitted to deny that there is such a corporation.” To the same effect are Topping v. Bickford, 4 Allen, 120; Merchants' Nat. Bank v. Glendon Co., 120 Mass., 97; Huffaker v. Nat. Bank, 12 Bush, 287; Vater v. Lewis, 36 Ind., 288; John v. F. & M. Bank, 2 Blackf., 367; Montgomery R. R. Co. v. Hurst, 9 Ala., 513; Jones v. Bank, 8 B. Mon., 123; Rector, Church Wardens, etc. v. Lovett, 1 Hall, Sup. Ct. R., 191. In the last ease cited it was held that, “ where there has been a body corporate de facto for a considerable period of time, claiming at least to be such, and holding and enjoying property as a corporation, it will be presumed that every mere formal requisite to the due creation of the corporation has been complied with.” It was further, in effect, held in that case, that one contracting with such church in its corporate name thereby admits the existence of the corporation, and cannot thereafter deny it; and, where suit is brought by the trustees of sueh church colore officii, the defendant cannot object upon the ground that they are not trustees, without showing that proceedings have been instituted against them by- the government, and carried on to a judgment of ouster.

In the light of these authorities, we must hold that Butler is in no position to deny that any estate passed by the lease, on tbe ground that there' were no such corporations in existence as therein named. We must further hold that the plaintiff is in no better position in that regard than Butler. Prior to the execution of the mortgage, the churches, by their respective trustees, relying upon the rights given to them by the lease, went into possession and built a valuable structure, and-were occupying the same as a meeting-house or church at the time the mortgage was given. Such occupancy must be regarded as notice to the person taking the mortgage, and all persons claiming under him.

With the view we have taken of the case, it becomes unnecessary to consider the other questions presented. No attempt was made to show that the churches had forfeited the grant contained in the lease by non-user or mis-user, and until such forfeiture the right to possession and use must remain in the trustees of the respective churches. Messer v . Oestreich, supra.

Eor the reasons given, the judgment of the circuit court must be reversed, and the cause remanded with directions to dismiss the complaint.

By the Oourt.— So ordered.