Elofrson v. Lindsay

• Citation: 90 Wis. 203,63 N.W. 89
• Parties: ELOFRSON v. LINDSAY.
• Decision Date: 23 April 1895
• Court: United States State Supreme Court of Wisconsin

90 Wis. 203

63 N.W. 89

ELOFRSON

v.LINDSAY.

Supreme Court of Wisconsin.

April 23, 1895.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action in ejectment by Peter Elofrson against John Lindsay. Defendant appeals from a judgment in favor of plaintiff. Reversed.

Ejectment for a strip of land three feet wide and eight rods long, in the village of Marshall. The complaint is in the usual form. The answer is a general denial, except that it admits that the defendant is in possession and claims title by tax deed. The plaintiff produced in evidence a chain of conveyances, showing title in him of lands described as follows: “Commencing at the southwest corner of lot five (5), in block sixty-five (65), according to the recorded plat of the village of Marshall, as recorded in the office of the register of deeds; thence running east fifty-seven (57) feet; thence north eight (8) rods; thence west fifty-seven (57) feet; thence south eight (8) rods, to the place of beginning.” This description does not cover or include the tract described in the complaint, nor any part of it, nor does it touch it at any point. The plaintiff and his predecessors in possession have occupied the tract described in the complaint, together with adjoining lands, supposing that they owned it by virtue of such conveyances, for more than 20 years; and the plaintiff himself has occupied it for more than 15 years, supposing that it was included in the description in such conveyances. The court, against objection, received extrinsic evidence to show that the description in the conveyances was intended to describe and include the strip described in the complaint. The defendant relied upon a tax deed and possession under it, claimed to have been taken with the consent of the plaintiff. The plaintiff denied that he consented to defendant's possession, and claims that it was taken by intrusion into his peaceable possession. He contests the validity of the tax deed, on the ground that it was taken without the notice of intention to take it, required by section 1175, Rev. St., at a time when the premises were actually occupied by him, and upon a false affidavit that they were unoccupied. Upon these questions raised by the defense there was a conflict in the testimony. The court directed a verdict for the plaintiff. From a judgment on that verdict, the defendant appeals.Bushnell, Rogers & Hall, for appellant.

A. G. Zimmerman, for respondent.

NEWMAN, J. (after stating the facts).

It was not competent to receive evidence to show that the conveyances were intended to cover and include the strip of land in controversy. The rule is that parol evidence to vary the terms of a written instrument, or to show an intention contrary to that disclosed upon its face, is not competent, unless there is ambiguity in the instrument itself. Hubbard v. Marshall, 50 Wis. 322, 6 N. W. 497;Hei v. Heller, 53 Wis. 415, 10 N. W. 620;Scholz v. Dankert, 69 Wis. 416, 34 N. W. 394;Liebscher v. Kraus, 74 Wis. 387, 43 N. W. 166;Morss v. Salisbury, 48 N. Y. 637;Hill v. Priestly, 52 N. Y. 635;Hartt v. Rector, 13 Mo. 497; Browne, Par. Ev. 199, 200, and cases cited. The description of the premises, in the conveyances produced by the plaintiff, was entirely free from ambiguity. Nothing could be added or subtracted which could make it more certain. And the premises described could be readily identified by a survey. The description was, evidently, a mistake. But evidence that it was a mistake, or to change the description, is incompetent, in an action at law. The proper remedy for the correction of such a mistake is an action, in equity, for that purpose. In an action at law, it must stand as it is written. Casgrain v. Milwaukee, 81 Wis. 113, 51 N. W. 88. It is also well settled that, where the description of the premises in a deed is definite, certain, and unambiguous, extrinsic evidence to show acquiescence in a different location is inadmissible, unless such practical location is followed by an adverse possession for such a length of time as to bar...