Hunt v. Wenger

• Decision Date: 10 January 1899
• Citation: Hunt v. Wenger, 101 Wis. 556, 77 N.W. 901 (Wis. 1899)
• Parties: HUNT v. WENGER ET AL.
• Court: Wisconsin Supreme Court

101 Wis. 556

77 N.W. 901

HUNT

v.WENGER ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1899.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by E. L. Hunt against James T. Wenger and others. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed.

Action by a tax-title claimant under chapter 50, Rev. St., to bar former owners. The copy of the tax deed contained in the complaint was in the statutory form and the complaint unobjectionable as to the facts stated therein, unless the deed be defective by reason of the language of the opening recital, which is as follows: “Whereas, E. L. Hunt, assignee of F. H. Ruger, and assignee of F. H. Ruger, who was assignee of Douglas county, has deposited in the office of the county clerk of the county of Douglas, in the state of Wisconsin, ten certificates of the treasurer of said county, whereby it appears, as the fact is, that the following described pieces or parcels of land lying and being situated in the city of Superior, county of Douglas, and state of Wisconsin, to wit:” Then follows the description, then the following: “Were for the nonpayment of taxes, separately sold by the treasurer of said county at public auction, at his office in the city of Superior, in the county of Douglas, on the 15th day of May, in the year of our Lord one thousand eight hundred and ninety-four, to the said Douglas county and F. H. Ruger, respectively, for the sum set opposite each description, being the sum of two hundred and fifty dollars and twenty-nine cents, in the whole,” etc. The appellant demurred to the complaint for want of facts stated therein sufficient to constitute a cause of action. The demurrer was sustained and plaintiff appealed.A. B. Ross, for appellant.

Michael S. Bright, for respondents.

MARSHALL, J. (after stating the facts).

Two defects in the tax deed are pointed out, which respondent contends render it void on its face. One or the other or both of such contentions were sustained by the trial court, hence the order appealed from.

First. It is said that the deed shows the tracts of land were sold to F. H. Ruger and Douglas county jointly. Such a sale is unauthorized by statute, hence void. Sprague v. Coenen, 30 Wis. 209. If the language of the deed supports that contention the instrument is manifestly insufficient, and the demurrer was properly sustained. To support that construction of the deed, which we assume the learned trial court adopted, respondent's counsel says the word “respectively” is an adverb, therefore its proper office in the sentence stating that the lands were sold to Douglas county and F. H. Ruger, is to qualify the words “were sold,” and not to express anything attributable to the subject of the sentence, which counsel say is the aggregate of the certificates sold. We cannot agree with counsel's grammatical analysis of the sentence, nor with his apparent theory that rules of grammar are rules of law. It is one of the most familiar doctrines in the construction of written instruments, that courts will not adopt a construction which will do violence to the rules of language or of law; but that does not mean that rules of grammar cannot be violated, otherwise it would be impossible, in many cases, for courts to give effect to the manifest intention of parties, shown by the language used by them. The maxim that rules of language cannot be violated, even to carry out the manifest intention of the parties, means merely that words cannot be said to convey a meaning other than one which can be reasonably attributed to them. The office of judicial construction is to determine what parties intended by their written language, and in reaching a correct conclusion as to that, inaccuracies and mistakes in the arrangement of words or parts of speech, or punctuation, easily give way to the theory of the parties when entering into the contract, the only limit being that there must be some uncertainty calling for judicial construction, and the result reached must be reasonably attributable to the language used and not violate rules of law. The intention being determined, words, sentences and clauses are brought into harmony with that so far as the meaning reasonably attributable to words will permit, regardless of mere rules of grammar or punctuation. Bank v. Wilkin, 95 Wis. 111, 69 N. W. 354. What has been said is in entire harmony with the rule that, unless it lead to some uncertainty, or the intent of the parties require a contrary course, contracts should be construed according to rules of grammar. But, “Grammatica falsa non vitiat chartam” is a maxim that applies when necessary to effect the intent.

The subject of the sentence under consideration is not the 10 tax certificates, as counsel seem to suppose, but the several tracts of land sold. Leaving out connecting words, descriptive clauses, and most of the modifying phrases, and placing qualifying words in close connection with the words they qualify, the sentence is: Pieces or parcels of land were separately sold respectively to the county of Douglas and F. H. Ruger; perhaps not the best model of style and clearness that can be given, viewed from the standpoint of the most approved rules of rhetoric, yet the meaning of the sentence is not difficult to discern viewing the language in the light of common sense and common experience, and the logical subject of the sentence (which is a good test and the one that should prevail unless it be clearly manifest that some other meaning was intended,--2 Pars. Cont. [9th Ed.] 618, note t), and when viewed in the light of the rule that in construing a written instrument a meaning should be preferred consistent with legality rather than one that will defeat it, and that all words used shall be construed as having been used for some reasonable purpose. “Constructio legis non facit injuriam.”

The phrase, “to the county of Douglas and F. H. Ruger,” qualifies the words “were sold” as qualified by the adverbs “separately” and “respectively.” If the intention was to express the idea that the sale was to the county of Douglas and F. H. Ruger jointly, obviously the word “respectively” had no office whatever to perform in the sentence. The words “separately sold to the county of Douglas and F. H. Ruger” express the idea completely. If it was used as a qualifying word as to each separate sale to both...