Ludtke v. Compound Sch. Dist. No. 5, Town of Lima
| Decision Date | 19 December 1944 |
| Citation | 246 Wis. 235,16 N.W.2d 562 |
| Parties | LUDTKE et al. v. COMPOUND SCHOOL DIST. NO. 5, TOWN OF LIMA, ROCK COUNTY, et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Rock County; Jesse Earle, Judge.
Reversed.
This action was begun on April 24, 1942, by the plaintiffs, George E. Ludtke and Henry C. Ludtke, against the Compound School District No. 5, Town of Lima, Rock County, and the Town of Whitewater, Welworth County, et al., defendants, to ascertain the rights of the plaintiffs in a certain piece of land. There was an answer and counterclaim by the defendant district seeking to have title quieted in it. There was a trial by the court. The court found in favor of the defendants and from judgment entered on the 7th day of April, 1944, quieting title in the defendants, the plaintiffs appeal.
The facts will be stated in the opinion.
Earl Rogers, of Whitewater (Jeffris, Mouat, Oestreich, Wood & Cunningham, of Janesville, of counsel), for appellants.
Easton Johnson, of Whitewater, for respondent.
On the 31st day of December, 1847, one Isaiah Dike was the owner of the premises hereinafter described. On that day he executed an instrument, of which the following is a copy:
‘This indenture made the 31 day of December in the year of our Lord one thousand eight hundred and forty seven. Between Isiah Dike of the Town of Lima in Rock County Wisconsin Territory party of the first and compound school District Number five being in the said town of Lima and the Town of Whitewater in Walworth County of the second part. Witnesseth that the said Isiah Dike for and in consideration of the Sum of ten dollars to him in hand paid by the said School District, hath bargained Sold, demised & Leased and by these presents doth bargain, sell, demise and lease unto the said School District all that certain piece of Land situate in said town of Lima and bounded as follows. Commencing at the centre of the Rock and Walworth County Road where it is Crossed by the centre of the Dulace and Whitewater Road on the East & West centre line of Section (13) thirteen in said Town of Lima and running thence West on said centre line nine rods thence South nine rods-thence East nine rods-thence North along centre of Said County Road nine rods-to the place of Beginning-containing one half acre of land more or less to have and to hold the said piece of land with the appurtenances unto the said School District So long as the said School District shall occupy said piece of land for District School purposes and Said District shall keep a school house on the said land, and occupy the same by having a District School in said house two months in a year.
‘In witness whereof I have hereunto set my hand and seal the day & year first above written.
Isaiah Dike (L.S.)
‘In presence of} Willard Stebbins Ira Kinney
‘Personally appeared before me the siner of the within Lease and acknowledged the same to have been sined by him for the purpose herein specified.
‘Azor Kinney Justice of the Peace.’
Indorsement
‘Isiah Dike
to
* * *
Lease
Recorded in Registers
Office Rock County
Wis Sept 28th 1853
at 1 1/2 O.Clock P.M.
in Book ‘L’ of Mortgages on
Samuel A. Martin Register
By C. W. Gibbs Deputy'
After finding the facts in regard to the execution and recording of the instrument, the Court further found that since the execution and delivery of the instrument, the defendant school district has been and now is in the sole and exclusive possession of the premises therein described; that the price paid by the district, $10, was an adequate price for the land at the time and place in question; that a school has been conducted on said premises since shortly after the date of the instrument until three years ago. For the last three years the school district, on account of the small number of children of school age in the district, has voted to suspend their school and transport their children to another district; that at the present time there are in said district two children of school age. The school building and equipment have remained intact and regular meetings have been held; that the school property is still being used for school purposes although school proper is not being held on the premises. Conditions may again require school to be held on the school land.
The court further held that the instrument in question conveyed to the school district an absolute title in fee and that the district ever since has been and now is the unconditional owner in fee thereof.
The plaintiffs contend that the instrument executed by Isaiah Dike is a lease; that the defendant no longer complies with the conditions of the lease fixing the terms and that by reason of such failure, the lease has been terminated and they are entitled to the possession of the premises.
The defendant contends that the document is as the court found an absolute conveyance of the premises and that the judgment of the court quieting title in the defendant is right.
The contentions of the parties in this case raise a question of considerable difficulty. The words ‘bargain and sale’ were ordinarily used at the time in question in a deed in connection with the word ‘grant’, the usual...
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