Wilson v. Henry

40 Wis. 594

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

Opinion

Ryan, C. J.

The respondent’s criticism on the acknowledgment of the tax deed under which the apjjellant claims, is ingenious, but too nice to support the objection to the deed. Winans v. Ins. Co., 38 Wis., 342; Dousman v. Mining Co., ante, p. 418.

Sec. 50, ch. 22 of 1859, requires the clerk to execute the deed in the name of the state and the county, as grantors; and it is essential to the validity of the deed, that they purport to be the grantors in it. Woodman v. Clapp, 21 Wis., 355. Sec. 25 requires the clerk to acknowledge the deed. The clerk acknowledged this deed to be the deed of the state and county. Perhaps it would have been more proper for him to have acknowledged his execution of the deed for the state and county. But the distinction is very nice. In either form, it is very certain that the clerk who executes the deed, in acknowledging it, implies an acknowledgment of his own execution of it. And as he is the officer authorized by law to execute the deed in the name of the grantors, his own acknowledgment might be sufficient. The certificate here shows that he acknowledged the deed for the grantors, and that appears to us a sufficient compliance with the statute. Ch. 86, sec. 8, R. S. A substantial compliance is sufficient. Myrick v. McMillan, 13 Wis., 188; Wilson v. Hunter, 14 id., 683; Smith v. Garden, 28 id., 685.

The learned appellant appeared to assume that there is a conflict in the cases in this court, on the subject of actual adverse possession. We think this a mistake. It appears to rest upon the idea that secs. 6 and 7, ch. 138, R. S., assume to exhaust the conditions- of actual adverse possession under paper title. Such a view would be an entire misapprehension of the scope and tenor of those sections, and of the construction given to them by this court.

Sec. 6 limits the extent of constructive adverse possession, under paper title, arising from actual adverse possession of part only of the premises included in the paper title. But, like sec. 8, it gives the effect of actual adverse possession, without attempting to define what shall or shall not constitute such possession. Sec. 7, however, “ proceeds to define some conditions of adverse possession under sec. 6.” Pepper v. O’Dowd, 39 Wis., 538. The object of sec. 7 is obviously to establish certain rules of actual adverse possession, which the legislature considered just and necessary in view of the habits of the people. But the section does not undertake the dangerous task of codifying all conditions and qualities of actual adverse possession. This is manifest in the language of the section. “For the purpose of constituting an adverse possession, land shall be deemed to have been possessed and occupied in the following cases.” Ilere is no restrictive phrase; no sign of a restrictive intent. No one of the conditions given goes upon a pedis possessio; perhaps more properly written, pedis positio; possessio est quasi pedis positio; a rule “ ill suited to a country in which a large proportion of every man’s land is uninclosed.” Gibson, C. J., in Waggoner v. Hastings, 5 Pa. St., 300. The conditions given in the section are probably all conditions which would fail to uphold an adverse possession at common law. Jackson v. Schoonmaker, 2 Johns., 230; Bailey v. Irby, 2 Nott & McC., 343. Noticeably, not one of the conditions goes upon perhaps the most perfect quality of actual possession, actual residence. For one may well enter under paper title and reside upon land, not cultivated, improved, inclosed, or used for fuel or fencing, within the meaning of the section; some or all of these conditions per-liaps following later. So one might occupy land, uncultivated, unimproved, uninclosed, unused for fencing or fuel, for a lumber or coal or wood yard, or for storing other heavy goods, or for the manufacture of staves or other wooden ware from growing timber, so as to constitute a continuous, visible and notorious adverse possession. N one of these cases or others which can be supposed, appear to come within the terms of the section. Yet there is nothing in the section to exclude them. And it is inconceivable that the legislature could have intended to exclude them. Giving the character of actual possession to conditions which might otherwise uphold constructive possession only, it cannot be supposed that the section was intended to exclude cases of absolute possession, unaccompanied by such conditions. Manifestly the design of the section was to supply certain conditions of actual adverse possession, not to exclude others. This is the plain import of the language used, and the construction given to the section in Pepper v. O’Dowel, not questioned in any other case in this court which we are able to recall. Sec. 6 is therefore held to limit and define the extent of constructive adverse possession, arising from actual adverse possession under paper title, in all cases, whatever may be the nature of such actual possession; and sec. 7 is held to define given conditions, but not to limit the conditions, of actual adverse possession. "Whatever would constitute actual adverse possession under paper title, outside of the statute, still constitutes it, notwithstanding the statutory definition of other conditions of such possession.

It is true that in Sydnor v. Palmer, 29 Wis., 226, the chief justice, upon a casual reading of his opinion, would seem to refer all actual adverse possession to sec. 7; but a careful consideration of the opinion will show that he did not fall into that error. That was a case of actual adverse possession claimed by force of mining operations. The court below had read secs. 6 and 7 as a part of the charge, and instructed the jury that the possession claimed, came within section 7. The opinion simply, and beyond doubt correctly, bolds that this was error; summing up the discussion in these words: “ It seems clear, therefore, that all the provisions of the statute relate, and are intended to apply only, to the use and occupation of land for the purposes of husbandry; and that its use or occupation for the purpose of digging mineral, or other works and operations beneath the surface, and not connected with agriculture or the ordinary use and cultivation of the soil, is not included. But it may be said that these observations are unnecessary; and so in strictness they seem to be, since, notwithstanding the instruction, the jury found there had been no adverse possession for the period of ten years be - fore the commencement of the action.” Whether or not material in that case, the view of the statute thus taken is undoubtedly correct, so far as it goes; but we find no word in the opinion going to hold that the provisions of sec. 7 are exclusive of all other actual adverse possession. And this construction of the opinion in that case, and of the statute, is tacitly recognized by the same learned judge in Wilson v. Henry, 35 Wis., 241. Eor it is held in that case that possession under color of title, by mining operations, would be sufficient to disengage the bar of the statute of limitations in favor of the grantee by tax deed, and to create a bar against him. And so it is correctly said by Cole, J., in Stephenson v. Wilson, 37 Wis., 482: “ The doctrine of the case of Sydnor v. Palmer was not supposed to be in conflict with that of Wilson v. Henry by the chief justice, who wrote both opinions, nor did the other members of the court understand that it was.” ’

So, in the latter case, Stephenson v. Wilson, some language in the opinion might possibly bear the construction of referring all actual adverse possession to sec. 7. But it is used only in comment upon the construction given at the bar to Sydnor v. Palmer. It is said that the remark of the chief justice in Sydnor v. Palmer, already noticed, was unnecessary and so stated to be at tbe time, and added: “ Still tbe defendant relies upon it more or less to sustain tbe construction of tbe statute for wbicb be contends. In tbe broad sense in wbicb tbe language is used or is attempted to be applied, we think tbe remark needs qualification.” Thei’e is nothing bere at all in conflict witb tbe construction of tbe statute adopted in Pepper v. O’Dowd, and in this case. And indeed that construction is implied in Stephenson v. Wilson, as well as in Wilson v. Henry, by upholding actual adverse possession by mining operations, wbicb are clearly within none of tbe four subdivisions of sec. 7.

"Whatever doubt, therefore, might be implied from tbe language used in Sydnor v. Palmer, it is settled in Wilson v. Henry and Stephenson v. Wilson, that occupation under paper title by mining operations, continuous, visible and notorious, may constitute actual adverse possession. And we have no doubt of tbe correctness of tbe rule. Sec. 7 was undoubtedly framed mainly in view of agricultural occupation; and, in tbe circumstances of tbe state, was undoubtedly wise and just. But, though mining is a less general and important, it is still a frequent and important industry bere, entitled to protection as well as agriculture. It is not protected by tbe statute, as agriculture is; but there is no reason why it should be proscribed by tlie statute, and we have seen that it certainly is not. While tbe law remains as it is, it is not an open question in this court that mining operations may constitute actual adverse possession. In tbe present case it is res adjudicata for Wilson v. Henry was another appeal in this cause; and it was there held that tbe very mining operations set up by tbe respondent bere, if proved to be continuous, visible and notorious, would constitute actual adverse possession, sufficient “not only to disengage tbe bar of tbe statute when resorted to in favor of tbe grantee by tax deed [tbe present appellant], but also to create a bar against him and in favor of tbe title of such former own- or ” (tbe present respondent’s principal, in whose right he defends).

We cannot think it material in this case, that in Stephenson v. Wilson we held the legal title of the respondent to be defective because the patentee’s deed, under which the respondent' claimed by mesne conveyances, was void under an act of congress. Neither can we follow what was somewhat loosely said in Wilson v. Henry, to the effect that the respondent’s principal, Stephenson, must be held as the true owner, notwithstanding technical defects in his title; and that the appellant, claiming under a tax deed, could not take advantage of such defects in Stephenson’s title. This view was unnecessary to the decision of that appeal, and appears to disregard the rule that a plaintiff, seeking to recover on his legal title, must recover on the strength of his own and not on the weakness of his adversary’s. But a perfect legal title was unnecessary to Stephenson or his representative in that appeal, as it is in this. Certain it is, that if Stephenson took any possession, he took it “ under claim of title, exclusive of any other right, founding such claim upon some written instrument, as being a conveyance of the premises in question,” within sec. 6. Such an entry, as is held in Wilson v. Henry, would, operate to begin an actual adverse possession, to cure all defects of his title in ten years,, and would therefore break the bar of the statute in favor of the tax title. Eor it would be too absurd to suggest that there could be a constructive adverse possession of the same premises in one, and an actual adverse possession in another, each running to bar the other in statutory time; or that there could be actual adverse possession of the same premises, in different claimants, under different titles, each running at the same time, to bar the other. If the respondent’s principal, Stephenson, could take actual adverse possession to bar any one, he could to bar the appellant.

Stephenson appears to elaim the premises, Iona fide, under a paper title, which he toot believing it to be good. His possession is very distinguishable, under the statute, from a mere trespass, as in Gunnison v. Hoehne, 18 Wis., 268.

If Stephenson took actual adverse possession, under his paper title, so as to interrupt the three years’ possession of the appellant under sec. 32, ch. 22 of 1859, he would presumably have defeated the appellant’s title, to the extent of such actual possession and of the constructive possession following upon it under sec. 6, ch. 138.

This brings us back to the latter section. Our views of the object of this section are fully explained. in Pepper v. O’Dowd, and need not be repeated here. ¥e then gave and now affirm this construction of the scope and effect of its provisions: “ Sec. 6 enacts, what was generally recognized as the law before the statute, that when one enters into and holds continual possession, under a paper title, of part of the premises included in it, he shall be deemed to hold adversely all the premises included in it; that is, when one enters under color of title, he is presumed to enter claiming according to the extent of his title (Sydnor v. Palmer, 29 Wis., 226), and where there is no adverse possession, the law will construe his entry to be coextensive with his title (Ellicott v. Pearl, 10 Pet., 412), ‘ except that when the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed the possession of any other lot of the same tract.’ This exception materially restricts the rule of constructive adverse possession, as held before the statute; and unquestion-bly enters into every condition of adverse possession under these sections, save only in the instance of a Jmown farm, substituted by subd. 4 of see. 7 for a single lot. And so, under these sections, actual adverse possession of part of a single lot or a known farm shall not operate as constructive adverse possession beyond the limits of such lot or farm.” “ There is no difficulty in determining what a single lot of the statute is. It is the smallest legal subdivision of land. Munro v. Merchant, supra.” And tbe rule of sec. 6 undoubtedly applies to all actual adverse possession under paper title, whether within or without sec. 7.

When land has not been further subdivided by the owner under patent from the United States, the lot of sec. 6 is undoubtedly the smallest subdivision of land under the land laws of the United States. At the time when the land in controversy was entered, and thence hitherto, this appears to have been generally a quarter-quarter section of land, forty acres. See act of Congress of April 5th, 1832, 4 U. S. Stat. at Large, 503; Act of Gongress of May 8th, 184-6, 9 U. S. Stat. at Large, 9; Circular of the Commissioner of the General Land Office of May 14th, 1846, 1 Lester’s Land Laws, 376.

And so any actual adverse possession of Stephenson, the respondent’s principal, would not operate as constructive adverse possession beyond the limits of the forty-acre lot on which the actual possession was held. And, being so limited, it could not, within the rule in Wilson v. Henry and Stephenson v. Wilson, affirmed in this opinion, operate to oust any actual or constructive possession of the appellant, or to disengage the bar of the statute in his favor, or to create a bar against the appellant and in favor of the respondent’s principal, outside of the forty-acre lot of which the actual adverse possession was held. Pepper v. O'Dowd, supra.

It is unnecessary to recapitulate the evidence bearing on the actual possession claimed by the respondent for his principal. It is sufficient to say that it does not appear to have covered each of the quarters of the quarter section in controversy.

In view of the evidence and as applicable to it, we cannot but hold that the charge of the court below overlooked the provision of sec. 6, limiting the constructive effect of actual possession to a single lot, or else applied it to the whole quarter section: “a tract divided into lots.” Whichever the mistake was, it is equally fatal to the judgment. It is true that the charge speaks throughout of Stephenson’s occupying and mining the laud, without airy distinction, between the whole or a part; but the fair construction of the charge, in the light of the evidence is, that occupation and mining on any part of the quarter section would equally affect the appellant’s claim of title to the whole. A jury, having heard the evidence, would presumably give it that construction; we think that a lawyer would. Be that as it may, when an instruction is so worded that, as applied to the evidence in the case, it has a tendency to mislead the jury as to the rule of law, judgment on a verdict following the instruction must be reversed. Hutchinson v. Railway Co., 37 Wis., 582, and cases there cited. The rule, as held in Pepjper v. O'Dowel, should have been fully and distinctly given to the jury.

The record of the ejectment suit of Stephenson v. Wilson was apparently competent evidence bearing on the question of possession, valeat quantum; but it was certainly not conclusive. The statute authorizes an action of ejectment, in certain cases, against persons not in actual possession, but requires the complaint to aver that the defendant withholds the possession. Platto v. Jante, 35 Wis., 629, and cases there cited. The averment of possession, in .such a case, is therefore not only formal, but untrue in fact; yet made imperative by an apparent oversight in the statute. Barclay v. Yeomans, 27 Wis., 682. And it would be unreasonable and unjust to hold it an estoppel.

We have been reluctant to disturb a second judgment in this cause; but our views of the law governing it leave us no choice.

By the Gowrt. — The judgment is reversed, and the cause remanded to the court below for a new trial.