Kneeland v. Van Valkenburgh

• Decision Date: 25 March 1879
• Parties: JAMES KNEELAND, APPELLANT, v. FRANK B. VAN VALKENBURGH, IMPLEADED WITH OTHERS, RESPONDENT.
• Court: Wisconsin Supreme Court

46 Wis. 434

1 N.W. 63

JAMES KNEELAND, APPELLANT,

v.FRANK B. VAN VALKENBURGH, IMPLEADED WITH OTHERS, RESPONDENT.

Supreme Court of Wisconsin.

Filed March 25, 1879.

Appeal from county court, Milwaukee County.

E. Mariner, for appellant.

F. B. Van Valkenburgh and J. P. C. Cottrill, for respondent.

Ejectment for a parcel of land in the 7th ward of the City of Milwaukee. The land claimed is described in the complaint by metes and bounds. It appears from such description that the land is a strip about fifty feet wide, being the east end of lot 1 in block 108 in that ward, and that the same is included within the limits of Biddle and Lake streets, and subject to a public easement for a highway. The answer contains a counter claim in which is inserted a conveyance executed in 1850 by the plaintiff to Mrs. Todd of a portion of said lot 1, which it is claimed includes the land in controversy. It is also alleged therein that the plaintiff had previously conveyed the balance of the lot, being the west 100 feet thereof, to one Perry, and that by mesne conveyances from Todd and Perry and their grantees, the defendant Van Valkenburgh has become and is the owner in fee of the whole lot. Also that the plaintiff sold and promised to convey to Mrs. Todd all his interest in lot 1 remaining after his conveyance to Perry, and executed the conveyance to her pursuant to such sale. The counter claim contains other averments of fact which it is claimed estop the plaintiff to deny Van Valkenburgh's title to the land in controversy. The premises conveyed by the plaintiff to Mrs. Todd are described in the deed thereof as follows: “the following described tract of land situate in the County of Milwaukee, in the State of Wisconsin, and is known as the east part of lot number one (1) in block number one hundred and eight (108) in the first ward of the City of Milwaukee, and bounded as follows, to-wit: Commencing at a point on the south line of Biddle street one hundred (100) feet east of the northwest corner of said lot, thence southerly on a parallel line with Astor street to the north line of lot number two (2) in said block, thence easterly on the north line of said lot two to Lake street, thence northerly on the westerly line of Lake street to the south line of Biddle street, thence westerly on the south line of Biddle street to the place of beginning; being one hundred and eight (108) feet on Biddle street, be the same more or less, but subject to all legal highways.” It is supposed that the number of the ward has since been changed to the seventh.

The plaintiff replied to such counter claim, denying the averments of fact pleaded as an estoppel, and denying that by his deed to Mrs. Todd he intended to or did convey any land included in the limits of Lake or Biddle street; but admitting the execution of the conveyance to Mrs. Todd as stated in the counter claim.

The defendant Van Valkenburgh demurred to the reply, alleging that it fails to state a defense to the counter claim. The court below sustained the demurrer, and from the order sustaining the same the plaintiff has appealed.

LYON, J.

--If the deed of 1850 executed by the plaintiff to Mrs. Todd conveyed to her the land in controversy, the plaintiff cannot recover in this action; for it is essential to a recovery that he show title in himself. The counter claim avers and the reply admits the execution of that deed, and if it conveyed the land claimed it is obvious that the reply contains no defense to the counter claim, and that the demurrer was properly sustained. Hence the statement in the brief of the learned counsel for the appellant that “the substantial question is, whether appellant's deed to Todd...