Begg v. Begg

• Citation: 56 Wis. 534,14 N.W. 602
• Parties: BEGG v. BEGG AND OTHERS.
• Decision Date: 09 January 1883
• Court: United States State Supreme Court of Wisconsin

56 Wis. 534

14 N.W. 602

BEGG

v.BEGG AND OTHERS.

Supreme Court of Wisconsin.

Filed January 9, 1883.

Appeal from circuit court, Waukesha county.

D. H. Sumner, for respondent, James Begg.

A. Cook, P. H. Carney, and J. V. V. Platto, for appellants, Ann Adel Begg and others.

ORTON, J.

The plaintiff in ejectment claims the undivided one-half of the quarter section described in the complaint by virtue of a certain guardian's deed, dated the sixth day of January, 1866, which is in form to James Begg as the grantee. The answer sets up substantially that James Begg, the son of the plaintiff and the husband of the defendant Ann Adel and James Stewart Begg, purchased of the same guardian the other undivided half of said quarter section, and received a deed therefor, dated December 25, 1865, and that afterwards he purchased of said guardian the undivided half of the quarter section in dispute, and received the identical deed therefor set up by the plaintiff as evidence of his title, and that the said James Begg, the son, or James Begg, Jr., was intended to be and was the real grantee in said deed, and that he received a delivery thereof, and immediately thereafter he went into the possession of the premises thereby conveyed, and cultivated and improved the same, and made valuable improvements thereon in the shape of buildings, fences, etc., and continued in such possession until he died, and that the defendants have continued in such possession ever since. The fact alleged, that the deed by which the plaintiff claims was really the deed of the son, James Begg, and that he was the real grantee, and intended as such, might have been proved without answer to that effect, even in an action of ejectment, as the defendant in such a case may show, without setting it up specially, any matter which would defeat the plaintiff's title or render the deed on which he relies for title ineffectual for that purpose, or, as in McMahon v. McGraw, 26 Wis. 614, show that such deed ought to inure to the benefit of the defendant. This has been so often decided by this court that reference to the numerous cases to that effect need not be made. The matter of pleading is, therefore, out of the case.

It will be perceived that the main question here was of identity, or which of the two persons, the father or the son of the same name, was the real grantee of that deed. It was in evidence that, by usage at least, the plaintiff was designated as James Begg, Sr., and the son as James Begg, Jr., but as such affixes are no part of the name, so as to render identity absolutely certain on the face of a deed, and as neither was used in this deed, it is immaterial, other than as a fact which might be shown with other evidence in order to prove which of the two was intended. Emerson v. Brigham, 10 Mass. 203.

In a sense, as to the real person intended, there is a latent ambiguity in the deed, but more properly, perhaps, it is a question of identity; as in wills, “where the words are neither ambiguous nor obscure, and the devise on the face of it is perfect and intelligible, but from some of the circumstances admitted in proof an ambiguity arises as to which of two or more things, or which of two or more persons, (each answering the words in the will,) the testator intended.” 1 Greenl. Ev. § 289. This is what Lord BACON called “an equivocation; that is, the words equally apply to two things or two persons.” But it is clear that in any sense this question is not one of construction or of law, to be decided by the court in an action at law, but one of fact, pure and simple to be passed upon by the jury; as much so as the meaning of words used in a written instrument, which this court held was a...