Messer v. Oestreich

• Decision Date: 27 September 1881
• Citation: 10 N.W. 6,52 Wis. 684
• Parties: MESSER v. OESTREICH.
• Court: Wisconsin Supreme Court

52 Wis. 684

10 N.W. 6

MESSER

v.OESTREICH.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from circuit court, Jefferson coumty.

This action is to recover damages for an alleged breach of the covenant of seizin in the deed of the 53 acres of land in question, executed by the appellant and his wife, to the respondent, September 8, 1879, in consideration of $2,925, paid by the respondent to the appellant, in pursuance of a contract in writing made by the parties March 30, 1872, and by which the appellant gave to the respondent possession of the premises, and covenanted and agreed that upon payment of said consideration he would cause to be executed and delivered to the respondent a good and sufficient deed, in fee-simple, of the premises, free and clear of all legal liens and encumbrances except the taxes thereafter assessed. The deed is in the form prescribed by section 2208, Rev. St., for a “warranty deed.” The particular breach relied upon is a deed duly executed, acknowledged, and delivered by the appellant's grantors, Carl Oestreich and his wife, July 28, 1853, wherein and whereby they, in consideration of $40, purported to convey to the Milwaukee & Watertown Railroad Company, their heirs and assigns, forever, “a strip of land, five rods in width, for the uses and purposes of the said railroad company, along the line of their railroad as at present located, across or through the” 53 acres of land in question. This deed to the railroad company was a warranty deed with full covenants, and recorded August 29, 1853.Harlow Pease, for respondent.

Warham Parks, for appellant.

CASSODAY, J.

The deed from the appellant to the respondent is in the form prescribed by section 2208, Rev. St., for a “warranty deed.” That section provides that such deed shall have the effect of a conveyance in fee-simple to the grantee, his heirs, and assigns of the premises therein named, together with all the appurtenances, rights, and privileges thereto belonging, with a covenant from the grantor, his heirs, and personal representatives that he is lawfully seized of the premises; has a good right to convey the same; that he guaranties the grantee, his heirs, and assigns in the quiet possession thereof; that the same are free from all encumbrances; and that the grantor, his heirs, and personal representatives will forever warrant and defend the title and possession thereof in the grantee, his heirs, and assigns, against all lawful claims whatsoever. The deed must, therefore, be regarded as a warranty deed containing the covenants named. It is urged that there was no breach of the covenant of seizin, nor of the contract on account of the deed previously given to the railroad company for the reason that the description therein is void for uncertainty, and Williams v. Western Union Ry. Co. 50 Wis. 71, is relied upon in support of that position. That was an action of ejectment. It is true, the description in that deed was substantially like the one we are considering. But here it is admitted in the answer that at the time of making the contract the railroad company occupied a strip of land five rods wide through the land in question for track purposes, and that the same “is the part of said premises alleged to be held and owned by said railway, and the possession and use of which by it, to the exclusion of the plaintiff, is the cause of this action; that said track strikes the said lands on the south line thereof, and runs diagonally across the same in a north-west direction, leaving a part of said premises on each side thereof; that at said time said track was fenced by a board fence, at least four feet high, on both sides thereof,” and “that previous to the making of the contract * * * the plaintiff came upon the said premises * * * for the purpose * * * of examining the said premises with a view to purchase the same,” and that the plaintiff then “took notice of all the highways and the railroad track which ran through” said premises; and “that said strip of land so used had at the time above mentioned been in constant use for said purposes, by one or the other of said railroad companies, for nearly 20 years.” With these admissions in the answer the defendant was not in a position to claim that the deed to the railroad company was “immaterial.” On the contrary, they were to the effect that nearly 20 years prior to the contract with the plaintiff the railway company had located the track and the fences each side of it. From these admissions it may well be inferred that the deed was not given to the railway company until after such location of the track and fences, and hence the significance of the words “ as at present located.”

Deeds are to be construed with reference to the actual rightful state of the property at the time of their execution. Dunklee v. Ry. 24 N. H. 489;Richardson v. Palmer, 38 N. H. 212;Lane v. Thompson, 43 N. H. 320;Bell v. Woodward, 46 N. H. 332;Abbott v. Abbott, 51 Me. 575;Stanley v. Green, 12 Cal. 148;Tallman v. Franklin, 14 N. Y. 589;Ryeress v. Wheeler, 22 Wend. 148;Morgan v. Burrows, 45 Wis. 211;Ganson v. Madigan, 15 Wis. 144. For this purpose extrinsic evidence is often admitted in order to place the court in the position of the parties at the time of making the deed, and thus enable the court to intelligently interpret the language used. The law will not declare a deed void for uncertainty when the light which cotemporaneous facts and circumstances furnish renders the description definite and certain. It is for the court to construe a deed, but when so construed it is the duty of the jury to ascertain from the evidence whether the premises in question are within the description. These statements seem to be abundantly sustained by the authorities above cited. Here the answer admits that the premises in question were within the description, and hence there was no necessity of evidence.

If the track and fences each side of it had actually been built when the deed to the railway was executed, then it is very evident that the “strip” thereby intended to be conveyed was the strip which had so been fenced out. This case, therefore, is clearly distinguishable from Williams v. Western Union Ry. Co. But assuming that the track and fences were not built until after the deed to the railway company, yet it is admitted in the answer that they had been built and occupied by the company for railway purposes for nearly 20 years prior to the contract, and with the apparent acquiescence and consent of the defendant and his grantor. Besides, the description recites that the strip was “along the line of their [the company's] railroad as at present [then] located,” etc. This clearly indicates that the line of the road had been actually located at the time of making the deed which purported to convey a strip five rods in width along that line. The only uncertainty in the description is the failure to state lateral boundaries to the strip, or whether the middle or any other part of the strip should be upon the line so located. As stated, the answer, in effect, admits that the railway company had, nearly 20 years prior to the contract, given a practical construction to the deed by building the track and a substantial fence each side of it, and occupying the strip between the fences during that time for railroad purposes, with the apparent acquiescence and consent of the owner of the land, By such actual appropriation for so long a period, with the consent of the owner of the land, the uncertainty in the description would seem to be obviated.

In Hastings v. Stark, 36 Cal. 122, it was held that “if there be such uncertainty in the calls of a deed that either one of two or more objects will answer it, so that the line will run in two or more positions, and still harmonize with the other calls of the deed, the parties to the deed may adopt either line, and when so established it concludes both parties.” In The Georgia Railroad v. Hart, 60 Ga. 550, it was held that “the uncertainty of a deed as to what precise part or parts of a large tract might be appropriated as sites for buildings may be aided by actual appropriation and long enjoyment.”

In Crocker v. Crocker, 5 Hun. 587, in regard to a reservation otherwise uncertain, it was held that “the parties interested could locate it by agreement, or by acts, conduct, and declarations indicating a practical location, accompanied by user from and after the date of the creation of the right of way.” See, also, Collins v. Vandever, 1 Clarke, 573;Barlow v. Ry. 29 Iowa, 276;French v. Pearce, 8 Conn. 439.

In Stone v. Clark, 1 Metc. 381, Wilde, J., giving the opinion of the court, said: “Where the language is doubtful, especially in the description of the land conveyed, their evidence of the practical construction by the parties is admissible to explain and remove the doubt.” The same language is found in 1 Greenl. Ev. § 293, and quoted approvingly in Bell v. Woodward, 46 N. H. 332.

In Livingston v. Ten Broeck,16 Johns. 24, Spencer, J., said: “In the location of grants, when the words are equivocal, possession, which stands on the same footing as usage, has always been resorted to in explanation of the intent of the parties, and to give a construction to the location of the grant.” We conclude, therefore, that where a deed purports to convey a strip of land of a certain width along a line already located, but without prescribing the lateral boundaries, or designating the particular portion of the strip traversed by such line, and the grantee thereupon goes into possession under such deed and designates lateral boundaries thereof by substantial fences, and continues in the exclusive possession thereof for many years with the acquiescence and consent of the original owner, the parties must thereby be deemed to have given a practical construction to such deed which is binding upon them and those claiming under them. There is another reason why the deed to the railway...