Green Bay & Miss. Canal Co. v. Hewitt

• Decision Date: 10 May 1882
• Citation: 55 Wis. 96,12 N.W. 382
• Parties: GREEN BAY & MISSISSIPPI CANAL CO. v. HEWITT, JR., AND OTHERS.
• Court: Wisconsin Supreme Court

55 Wis. 96

12 N.W. 382

GREEN BAY & MISSISSIPPI CANAL CO.

v.HEWITT, JR., AND OTHERS.

Supreme Court of Wisconsin.

Filed May 10, 1882.

Appeal from circuit court, Outagamie county.

Action of ejectment to recover certain land in Outagamie county, described in the complaint. The complaint is in the usual form. The defendants answered jointly, admitting that the defendants Reuter were in possession of the land claimed, as tenants of the defendants Hewitt, and denying that the plaintiff owned the land or was entitled to the possession of it, or that the defendants unlawfully withhold the possession thereof from the plaintiff. The action having been tried by the court without a jury the court found for the plaintiff on the whole issue, and judgment was ordered and entered for the plaintiff for the recovery of the land claimed. The defendants appeal from the judgment.Moses Hooper, B. J. Stevens, and E. Mariner, for respondent.

Finches, Lynde & Miller, for appellants.

LYON, J.

The plaintiff company claims title to the whole of the land in controversy under a deed from Morgan L. Martin to it, executed in February and recorded in May, 1873. The defendants Hewitt claim title to an undivided half of the same land under a deed to them executed by said Martin, and recorded in January, 1880. For the purposes of the case it will be assumed that Martin was the absolute owner of the land, in fee, when he executed the deed thereof to the plaintiff in 1873, and that he derived title to an undivided one-half thereof by a deed theretofore executed to him by one Lowe, who then owned the same, and to the other undivided half by a deed dated December 23, 1871, executed to him by one Evarts, sheriff of Outagamie county, pursuant to a sale thereof on execution. The deed from Martin to the defendants Hewitt purports to convey the same tract conveyed to him by Lowe. This deed puts the title to the undivided half which Martin derived from Lowe in the defendants Hewitt, unless that interest passed to the plaintiff company by virtue of the deed of 1873.

Whether that interest did so pass to the plaintiff under that deed is the controlling question in the case, and the only one it is necessary to determine. By the deed of 1873 Martin “released, quit-claimed, and conveyed to the plaintiff, and its successors and assigns, forever, all of his claim, right, title, and interest of every name and nature, legal or equitable, in and to all of the following described property.” Then follows a description of the land in controversy. Thereinafter we find this clause: “The interest and title intended to be conveyed by this deed is that, and that only, acquired by said Morgan L. Martin by virtue of a deed executed to him by Almeron B. Evarts, sheriff of said Outagamie county, dated December 23, 1871.” These are the only claims in the deed of 1873 which affect the question under consideration. The solution of this question is not without difficulty, but it is made less difficult by the arguments of the learned counsel on both sides, which display great learning, research, and ability. Counsel for the defendants maintain that the granting clause in the deed of 1873 is ambiguous, and have predicated an argument thereupon, and cited many adjudications to support it, that in such a case the last clause above quoted must control the construction of the deed. We cannot adopt the position of counsel. It seems very clear to our minds that the granting clause is not ambiguous. It conveys to the plaintiff, in express terms, all of Martin's “claim, right, title, and interest, of every name and nature, legal or equitable, in and to all of the following described property,” being the land in controversy. It is not perceived that Martin could have employed plainer or more certain language to effectuate his purpose and intention to convey all of his interest in all of the land in controversy to the plaintiff. On the assumption that the sheriff's deed conveyed to Martin only an undivided half of the land, the clause last quoted is equally free of ambiguity. It is a plain, unmistakable expression by Martin of his intention to convey to the plaintiff only an undivided half of the land.

The rule has been invoked that deeds and contracts should be construed in accordance with the intention of the parties to them. But that is subject to this other rule, that if the instrument is free of ambiguity, such intention must be ascertained from the...