Meade v. Gilfoyle

• Decision Date: 22 September 1885
• Citation: 64 Wis. 18,24 N.W. 413
• Parties: MEADE v. GILFOYLE.
• Court: Wisconsin Supreme Court

64 Wis. 18

24 N.W. 413

MEADE

v.GILFOYLE.

Supreme Court of Wisconsin.

Filed September 22, 1885.

Appeal from circuit court, Outagamie county.

This is an action of ejectment, commenced August 9, 1883, for a part of a lot described in the village of Kaukauna. The complaint is in the usual form and alleged that the defendant had unlawfully withheld the possession since June 1, 1883. The answer was a general denial, and an equitable counterclaim, to the effect that in 1869 the defendant, by verbal contract, purchased the land of D. J. Brothers and paid for the same, and went into the actual and exclusive possession thereof, and cleared and fenced the same in that year, and had been in the open and exclusive possession and occupancy of said premises ever since that time as a residence and homestead for himself and family; that after the defendant so purchased and went into such possession, the plaintiff, through mesne conveyances and with notice of the defendant's rights, obtained the legal title from D. J. Brothers, and hence prayed a conveyance from the plaintiff to the defendant. A jury was waived, and the cause was tried by the court, which found specifically that all the material allegations of the answer were true, and as conclusions of law that the defendant was entitled to judgment dismissing the complaint, and a quitclaim deed from the plaintiff to him as prayed in the answer. From the judgment entered thereon the plaintiff brings this appeal.Hudd & Wigman, for appellant, M. J. Meade.

Humphrey Pierce, for respondent, James Gilfoyle.

CASSODAY, J.

The plaintiff gave evidence tending to show a chain of title from the United States to him, through George W. Lowe, of the S. 1/2 of that part of private claim No. 1 west side of the Fox river, at Kaukauna, Outagamie county, Wisconsin. In support of the defendant's right to the possession of the land particularly described, he gave in evidence a tax deed from the county to D. J. Brothers, executed and recorded September 4, 1865, containing only this description: “Private claim No. one, 642 55-100 acres, less land included in private claims Nos. 34 and 35; also less those tracts formally described as lot 2, block 2, and lot 4, block 3, Kaukauna plat; also less that part formally known as lot 1, block 8; also less that part formally known as block 10, Kaukauna village, 143 acres, sold to Outagamie county for $31.51, except the following tracts: 7 1/2 acres, east of canal, redeemed by M. L. Martin and Fox & Wisconsin Improvement Company; 1/2 acre, more or less, by Chas. Cord, commencing at the N. W. corner of lot 2, block 13, Kaukauna plat; running thence N. E., on the south line of Canal street, 50 feet; thence S. E. to canal; thence S. W. 150 feet along said canal; thence N. W. to place of beginning; also tract formally known as lots 17 and 18, block 9, Kaukauna plat, as per deeds recorded vol. 7, Deeds, page 26, 1/2 acre, more or less.” The defendant also gave in evidence another tax deed from the county to D. J. Brothers, containing nearly the same description, executed and recorded May 14, 1866. In aid of the description, several records, certificates, documents, etc., were admitted in evidence. A witness, who had been called by the plaintiff, and testified that he was a surveyor, also testified, in effect, that the land in the defendant's possession, and in dispute, was included in the description in each of the tax deeds. It was urged, on the part of the plaintiff, that the description in each of the tax deeds was so indefinite and uncertain that it described no land whatever, and was therefore void; and also that the extrinsic evidence in aid of the description was improperly admitted.

The ambiguity in the description here consists in reference to records, documents, and descriptions outside the deeds, and which were necessarily to be regarded as a part of the description. This was a latent ambiguity. In support of the plaintiff's contention that such extrinsic evidence should have been excluded, counsel cite and rely upon Curtis v. Sup'rs, 22 Wis. 167;Orton v. Noonan, 23 Wis. 102;Delorme v. Ferk, 24 Wis. 201;Johnson v. Ashland Lumber Co. 52 Wis. 458;S. C. 9 N. W. Rep. 464. In Curtis v. Sup'rs, supra, the lots, blocks, and addition appeared to be perfectly described on the face of the tax deed, but the recorded plat revealed the fact that there were no such lots and blocks in the addition named. It also appeared from the plat that there were such lots and blocks in a different addition, and it was held that parol evidence was not admissible to show that such different addition was the one intended, instead of the one named in the deed; in other words, that parol evidence was inadmissible to strike from the deed one addition and insert a different addition. Orton v. Noonan, supra, was in principle the same. It may be questionable whether the case before us comes within the principle of those decisions. In Delorme v. Ferk, supra, it was held that the description was good under chapter 53, Laws 1866, notwithstanding it might have been invalid in the absence of that statute. That act provided that “in all advertisements, certificates, papers, or proceedings relating to * * * the assessment and collection of taxes, and proceedings founded thereon, as well heretofore as hereafter, any description of lands which shall indicate the land intended with ordinary and reasonable certainty, and which would be sufficient between grantor and grantee in an ordinary conveyance, shall be sufficient.” Section 1047, Rev. St.; chapter 268, Laws 1881. Here one of the tax deeds was prior to the passage of the act, and the other after. The objections taken went merely to the mode of proving the land to be within the description, and not to the groundwork and essence of the transaction which resulted in the execution and delivery of the deeds. Assuming that, as the law stood prior to that enactment, parol evidence was inadmissible to aid the description, yet the act was obviously intended to be retroactive, and, if valid, clearly authorized the admission of such evidence. It merely provided, in effect, that in tax deeds theretofore issued, as well as those thereafter issued, if the description given indicated “the land intended with ordinary and reasonable certainty” it should be sufficient, if it would have been sufficient in an “ordinary conveyance” between grantor and grantee. In other words, that extrinsic evidence should be admissible in the case of such tax deeds, the same as it would be in the case of an ordinary conveyance be tween grantor and grantee. That the legislature had power to so enact seems to be well established. Smith v. Cleveland, 17 Wis. 556;Selsby v. Redlon, 19 Wis. 17;Ehle v. Brown, 31 Wis. 405.

Such being the law, the question of uncertainty in the description in these tax deeds must be determined by the same rules as are applicable to ordinary conveyances between grantor and grantee. In Johnson v. Ashland Lumber Co. 52 Wis. 458, S. C. 9 N. W. Rep. 464, the description in the tax deed was, “lot 3, and the north-east quarter of the north-west quarter, less seven acres, of section 5.” The difficulty with that description consisted in the impossibility of determining what portion of the 40 constituted the 7 acres, and as that could not be located with certainty, it was equally impossible to locate the remaining 33 acres. Had that exception been “less seven acres,” as described in some other record, document, plat, or description, capable of being proved by extrinsic evidence, then what would otherwise be uncertain would, by virtue of such extrinsic evidence, be made definite and certain. For these reasons the case is distinguishable. In Campbell v. Packard, 61 Wis. 88, S. C. 20 N. W. Rep. 672, no complete description was given in the deed, nor by reference to anything outside the deed, and hence the case is distinguishable. In the same volume (Messer v. Oestreich, 52 Wis. 689, S. C. 10 N. W. Rep. 6) it is said that “deeds are to be...