Baldwin v. Anderson

• Decision Date: 01 October 1968
• Citation: 40 Wis.2d 33,161 N.W.2d 553
• Parties: Oscar W. BALDWIN et al., Appellants, v. Duane B. ANDERSON et al., Respondents.
• Court: Wisconsin Supreme Court

Page 553

161 N.W.2d 553

40 Wis.2d 33

Oscar W. BALDWIN et al., Appellants, v. Duane B. ANDERSON et al., Respondents.

Supreme Court of Wisconsin.

Oct. 1, 1968.

Geffs Law Firm, Janesville, for appellants.

Wickham, Consigny & Sedor, Janesville, for respondents.

HEFFERNAN, Justice.

Was the trial court's finding that the parties intended the

purchase and sale of all the Baldwin-Patterman farm, even

though a portion of that farm lay south of the river,

contrary to the great weight and clear preponderance of the evidence

The sellers argue that the trial court's finding that it was the intention to sell the entire farm including what might lie on the south side of the present river course should be set aside. They point to the offer to purchase, which recites, 'the part North of Sugar River.' Even though admitting that the acreage was 31 acres less than stated in the offer to purchase, they point out that the 413 acres was 'more or less.' They also argue that the purchasers had an opportunity to inspect the farm and that, in response to a specific inquiry, one of the sellers pointed out to one of the buyers that the southern boundary of the farm was the Sugar River (this apparently is now acknowledged by the sellers to be an inaccurate statement).

Perhaps a contrary finding could have been made, but this court has frequently stated that the test of a trial court's finding is not whether another finding could have been upheld but whether the finding that was made can be upheld as being not contrary to the great weight and clear preponderance of the evidence. Clark v. Moru (1963), 19 Wis.2d 503, 504, 120 N.W.2d 888; Druml Co. v. Capitol Machinery Sales & Service Co. (1965), 29 Wis.2d 95, 98, 138 N.W.2d 144; Ochiltree v. Kaiser (1963), 20 Wis.2d 191, 196, 121 N.W.2d 890. In making its findings, the trial court took into consideration all of the instruments involved in the transaction as well as the conduct of all of the parties. We pointed out in H. & R. Truck Leasing Corp. v. Allen (1965), 26 Wis.2d 158, 163, 131 N.W.2d 912, 914, that, 'In determining the parties' intent, it is appropriate to consider factors happening before and after the signing of an agreement.'

The trial court properly took into account not only the words of the offer to purchase, but also the words of the proposed land contract which reflected the vendors' interpretation of the vendees' offer to purchase. The trial judge reasonably interpreted the land contract to mean that the vendors wished to convey all of the farm. He found:

'That the parties intended to convey all of the premises known as the Baldwin and Pattermann Farm, whether north or south of the Sugar River, in accordance with the customary abstract description, wherever the actual boundaries extended as disclosed by the accepted legal description, not withstanding that the purchasers were under the impression that the southern boundary ended at the Sugar River while the sellers were not sure whether or not and, just where, it might extend beyond.'

The trial judge placed emphasis upon the description which the sellers placed in their proposed land contract: '413 acres of land, more or less, according to Government Survey.'

The trial court found as a matter of fact that this reference to the original government survey indicated that the sellers intended to convey the whole farm as it was at the time of the original survey. His position is clearly supportable in Wisconsin law. This Court has previously stated in Wisconsin Realty Co. v. Lull (1922), 177 Wis. 53, 62, 187 N.W. 978, 981:

'Express reference to the United States government survey makes the plat as recorded in pursuance to the field notes, if not a substantial part of the deed, at least an appropriate source of reference in so ascertaining the real intention.' In accord are Jefferis v. East Omaha Land Co. (1890), 134 U.S. 178, 195, 10 S.Ct. 518, 33, L.Ed. 872; Cragin v. Powell (1888), 128 U.S. 691, 696, 9 S.Ct. 203, 32 L.Ed. 566; Clark, Law of Surveying and Boundaries (3d ed.), sec. 440, p. 440; cf. Sheppard v. Wilmott (1891), 79 Wis. 15, 47 N.W. 1054.

The court also noted that there had been no express reservation by the vendors, although the original description would purport to convey property to the old government survey line including the 31 acres now south of the river.

It is apparent from the conduct of the vendors at the closing conference that they knew their paper title extended south of the river. At the closing conference they acknowledged that they had in fact on various occasions exercised dominion over that area as part of the Baldwin and Patterman farm. It is undisputed, and we concur in the trial judge's conclusion, that the description as it appeared in the land contract purported to convey all of the original Lot 2 and Lot 3.

While, undeniably, there are facts that tend to support the argument of the vendors, nonetheless, the finding of the trial court that the parties intended to sell the entire Baldwin and Patterman farm of 413 acres, more or less, as it was according to the government survey, was not against the great weight and clear preponderance of the evidence. The finding, therefore, must be

sustained. Was the vendor able to show merchantable title to

Lots 2 and 3 at the time of closing

This Court in Douglass v. Ransom (1931), 205 Wis. 439, 446, 237 N.W. 260, 263, defined merchantable or marketable title:

'What consitutes a marketable or merchantable (the terms are synonymous) title to real estate has been considered by this court in several cases. The general rule applicable is not difficult of statement, but it is often not easy to determine whether a particular defect falls within the rule. In the opinion of Mr. Justice PINNEY in Harrass v. Edwars, 94 Wis. 459, 464, 69 N.W. 69, it is stated that although a title is good, if there is reasonable doubt as to its validity it is not marketable. A material defect is such as will cause a reasonable doubt and just apprehension in the mind of a reasonably prudent and intelligent person, acting upon competent legal advice, and prompt him to refuse to accept it. If such doubt exists as to make the title subject to probable attack by legal proceedings, or depends upon facts which can only be established by parol evidence if attack is made upon it in such proceedings, the title is not marketable. In Stack v. Hickey, supra, (151 Wis. 347, 138 N.W. 1011,) it is stated that a marketable title is one that can be held in peace and quiet; not subject to litigation to determine its validity; not open to judicial doubt.'

In the instant case, the alleged title defect arose out of facts which could be determined, if at all, only by resort to further testimony and parol evidence not of record.

What the vendors sought to convey and the purchasers to acquire was the entire farm, including government Lots 2 and 3. One of the defendants' witnesses, Richard H. Batterman, a surveyor, stated a 'Government lot usually borders on a river or meandering stream or lake or ocean.' A fractional lot is defined by Clark, Law of Surveying and Boundaries (3d ed.), sec. 195, page 201, as:

'* * * those irregular tracts of land designated on the plats of surveys by the land department of the government. They are to be found only in fractional sections or fractional tracts. They are formed, either, (a) * * * (b) By meandered lakes, ponds or rivers which may cover a part of a section; * * *'

It is apparent that the intended boundary 'according to Government Survey' was the course of the Sugar River at the time of that survey. The evidence indicated that the Sugar River had moved northward almost a quarter of a mile during the one hundred thirty years since the government survey. There was testimony that this change...