Heinselman v. Hunsicker

• Decision Date: 25 April 1899
• Parties: HEINSELMAN v. HUNSICKER.
• Court: Wisconsin Supreme Court

103 Wis. 12

79 N.W. 23

HEINSELMAN

v.HUNSICKER.

Supreme Court of Wisconsin.

April 25, 1899.

Error to circuit court, Outagamie county; John Goodland, Judge.

Ejectment by John Hunsicker against William Heinselman for a strip of land, 2.36 chains wide at the north end and 2 1/2 chains at the south end, on the east side of the S. W. 1/4 of the S. W. 1/4 of section 19--21--15, in Outagamie county. The answer contains several defenses: (1) General denial; (2) ten years' limitation, and possession under written instruments; (3) twenty years' adverse possession; (4) facts supposed to constitute an estoppel. On the trial, the court directed a verdict for the defendant in error for the recovery of a strip of land 18 feet 5.76 inches wide at the north end and 8 feet wide at the south end, a more particular description being given in the opinion. A motion for a new trial was denied, and the defendant in the court below brings the case to this court for review on writ of error. Reversed.Cate, Sanborn, Lamoreux & Park, for plaintiff in error.

Bouck & Hilton, for defendant in error.

BARDEEN, J.

We attempt the solution of the question presented in this case with considerable vexation of spirit. The numerous mistakes in the printed case; the failure to make an index to either case or record, and to note in the case, as the rule requires, the page of the record where the printed matter could be found; the rambling, desultory, and contradictory character of the testimony; and the failure of counsel to cause witnesses to so connect their testimony with the locus in quo as to make it intelligible when produced in print,--has greatly increased our labors, and rendered a satisfactory conclusion difficult. The action is ejectment. The printed complaint calls for a strip of land 2.36 chains wide at one end, and 20 1/2 at the other. The complaint in the record demands a strip 2.36 chains wide at the north end, and 2 1/2 chains at the other extremity. The case makes the surveyor swear that this strip contains 44.06 acres,--a mistake, as shown by the record, of about 40 acres. These are instanced to show the unreliable character of the printed case. On June 12, 1849, William Swift entered the S. W. 1/4 of section 19--21--15. This, it appears, was a fractional quarter section, containing, according to the government survey, 168.36 acres. Under the rules of the government land office, under section 2395, Rev. St. U. S. 1873-74, the fractional subdivisions are thrown to the west and north of the sections bordering on the township and range lines. Section 19 borders on the range line, and the government plat offered in evidence shows that the N. W. 1/4 S. W. 1/4 contains 44.25 acres, and the S. W. 1/4 S. W. 1/4 contains 44.11 acres. January 15, 1851, Swift conveyed the E. 1/2 S. W. 1/4 to Michael Smith, and the deed described it as containing 82 acres. December 19, 1870, Swift conveyed the S. W. 1/4 S. W. 1/4 to McClellan, and described it as 40 acres. February 10, 1877, McClellan conveyed the same land to Hunsicker, defendant in error, describing it as 40 acres, more or less. On April 24, 1880, Swift executed a deed to Smith, to correct the deed before mentioned, in which he describes the land as the E. 82 acres of the S. W. 1/4, and recites that it was his intention to convey that amount of land by the former deed. This deed, it will be perceived, includes a strip, about two rods wide, from the east side of the S. W. 1/4 S. W. 1/4. February 5, 1881, one Jacob F. Diley made a deed to William Heinselman, the plaintiff in error, containing the following description: “Commencing at the northwest corner of the southwest quarter of section 19, town 21 north, of range 15 east; thence running east, along the quarter line, 86 rods, to the corner of lands owned by Michael Smith; thence south, parallel with the quarter line, 160 rods, to the center of the highway; thence west, along the center of the highway, 6 rods; thence north, along the line of the land owned by John Hunsicker, 80 rods; thence west, along the line of land owned by John Hunsicker, 80 rods; thence north, along the center of the highway, 80 rods, to the place of beginning,--containing about 46 acres of land, be the same more or less, according to government survey. The land not to interfere with Michael Smith's east 82 acres.” The record, so far as we are able to discover, fails to disclose any title in Diley; but, inasmuch as counsel for the defendant in error, in his brief, admits the existence of a deed from Swift to Diley, we shall assume that such a deed was in evidence. The conditions before referred to require us to take some things for granted in this case. On June 15, 1882, Smith deeded the east 82 acres of the S. W. 1/4 to the plaintiff in error.

Eliminating, for the time being, the question of the sufficiency of the description in the Diley deed as a foundation for color of title, we may summarize the condition of the claim of title, as affecting the land in dispute, as follows: Under the deeds from Swift to McClellan, and from the latter to Hunsicker, he became invested with the fee-simple title to all the land in the S. W. 1/4 S. W. 1/4, containing 44.11 acres. Under the claim of title through Swift's alleged “corrected deed,” Heinselman had a claim of title to a strip, two rods wide, on the east side of Hunsicker's land, and, under the Diley deed, to a strip, six rods wide, immediately west. It was to recover the possession of these two parcels that this action was brought. The plaintiff in error claims color of title and possession. Except in the particulars hereinafter noted, there is no serious dispute but that he went into possession of this strip in 1882, and continued such possession to the time of the trial. He claims that he entered into possession of this land under claim of title, exclusive of any other right, founding such claim upon both the Smith and Diley deeds as being conveyances of the premises, and that there has been continued occupation and possession of the same for more than 10 years. In other words, he claims that he has brought himself within the provisions of section 4211, Rev. St. 1878, and that no recovery can be had against him. Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171. So far as the east two rods of this strip is concerned, no question seems to be raised but that the deeds under which Heinselman claims purport to convey that land; but, as to the Diley deed, it is urged that the description is so imperfect and uncertain, when applied to the actual conditions, as not to convey even color of title. There is some force to this contention, but it is thought that the whole description, taken together, can be construed so as to cover the disputed tract without doing violence to established rules of construction. There can be no doubt but that a description which is hopelessly uncertain renders the deed void, and such a deed cannot be used as a basis for adverse possession under the statute cited. See Newell, Ej. 544. A cardinal rule of construction is that a conveyance of real estate will not be declared void for uncertainty of description when it is possible, by any reasonable rule of construction, to determine what property it was intended to convey. A rational intention must be sought for,...