Noonan v. Lee

• Decision Date: 01 December 1862
• Citation: 2 Black 499,17 L.Ed. 278,67 U.S. 499
• Parties: NOONAN v. LEE
• Court: U.S. Supreme Court

67 U.S. 499

2 Black 499

17 L.Ed. 278

NOONAN v. LEE.

December Term, 1862

[Syllabus from pages 499-501 intentionally omitted] Appeal from the District Court of the United States for the District of Wisconsin.

Mr. Gillet, of District of Columbia, for Appellant.

Mr. Brown, of Wisconsin, for Respondent.

Mr. Justice SWAYNE.

A careful examination of the facts disclosed in the record, is necessary to enable us to arrive at a proper solution of the questions presented for our determination.

Lee sold, on the 1st day of October, 1855, he and his wife, by deed duly executed, conveyed to Noonan certain real estate therein described, as follows:

'One equal undivided half part or share of that certain tract of land bounded and described as follows, viz.: Beginning in the centre of the Milwaukie river, on the centre of the road represented on the recorded plat of the village of Mechanicsville as running east and west between blocks five (5) and six (6) in said village of Mechanicsville; running thence easterly in the centre of said street to the centre of a street running north and south between blocks three (3) and (5) in Mechanicsville aforesaid; thence southerly in the centre of the last mentioned street to the centre of a street running east and west between blocks three (3) and four (4) in said village of Mechanicsville; thence easterly in the centre of said last mentioned street to a point that would be intersected by a north and south line through the middle of block three (3) in Mechanicsville aforesaid; thence southerly on the line bounding the west ends of lots one (1), two (2), three (3), and four (4) in block four (4) in Mechanicsville aforesaid, to south line of said lot four (4) in block four (4) aforesaid; thence easterly on the south line of lot four (4) in block four (4) to the west line of a lot of land containing about one-half (1/2) an acre, represented on said plat of Mechanicsville as being nearly in a square form in the southeast corner of the town plat of Mechanicsville aforesaid; thence southerly on the west line of said last-described tract of land to the south line of the town plat of Mechanicsville; thence easterly on said last mentioned line to the east line of fractional lot two (2) in section four (4), in township seven (7), north of range twenty-two (22) east; thence south to the south line of said fractional lot two (2); thence westerly on the south line of said fractional lot two (2) to the centre of the Milwaukie river; thence northerly in the centre of the Milwaukie river as it winds and turns to the place of beginning. Also the privilege of damming and flowing the Milwaukie river on said fractional lot two (2), as high as said river would be raised by maintaining a dam at least nine feet high, where a certain dam was located across said river, near the south line of fractional lot two (2), in the year 1837, as described in deed from Daniel Bigelow and Amasa Bigelow to Herman V. Prentice, recorded in Volume 'C' of deeds, on page 329, as to flow-water.'

The deed contains a covenant of general warranty.

Upon the same day Noonan executed to Lee a mortgage upon the same premises, conditioned to secure the payment of $4,000, in four equal annual instalments, with interest at the rate of 7 per cent. per annum, payable annually, according to the condition of a bond of the same date executed by Noonan to Lee; and also to secure the payment, by Noonan, of all taxes upon the mortgaged premises. It was further provided, that upon any default by Noonan in respect of the due payment of principal, interest, or taxes, the entire principal of the mortgage debt should, at the option of Lee, thereupon be deemed to have become due, and should, with the interest thereon, be collectable.

At the time of the execution of the bond, Lee made and signed the following endorsement upon it:

'I agree, if my title fails to the property, for the consideration of which this bond is given, except as against the United States, for the portion of the river beyond the meandered line, that I will not enforce this bond; and if any incumbrance shall be found, that the amount of the same shall be deducted from the moneys to fall due on this bond.'

On the 4th of March, 1859, Lee filed his bill setting forth that Noonan had paid nothing either of principal of interest of the mortgage debt; that he had notified Noonan that he claimed the entire debt to be due, and praying for a sale of the mortgaged premises, the payment of the mortgage debt, and for general relief.

The decree finds the amount due Lee to be $5,267.20; directs the sale of the mortgage premises, the payment of the mortgage debt, and the bringing of the surplus moneys, if there were any, into Court, and then provides that if the moneys arising from the sale were insufficient to pay the debt, interest and costs, that the Marshal in his report of the sale should specify the amount of the deficiency, that Noonan should pay it with interest, 'and that the complainant may have execution therefor.'

From this decree Noonan appealed to this Court

Several objections are made here to the decree:

I. It is said the deed is void because it refers for a part of the boundaries to the recorded plat of the town of Mechanicsville.

The law of Wisconsin (revision of 1849) requires that a town plat shall give 'the names, width, courses, boundary, and extent,' of all streets and alleys; that it shall be certified by the surveyor, acknowledged before an officer authorized to take the acknowledgment of deeds, and that it shall then, with the certificate of acknowledgment, be recorded.

The 9th section of the Act provides that if any person 'shall dispose of, offer for sale or lease' any lot or part of a lot before these requirements are complied with, he 'shall forfeit and pay the sum of $25 for each and every lot or part of a lot sold or disposed of, leased or offered for sale.'

This plat was acknowledged on the 15th of March, 1836, and recorded on the 15th of September, 1855. It does not give the names, courses, boundary or length of the streets, and it is not certified by the Surveyor. The certificate of acknowledgment represents the plat as laid out on the 'south-east part of the S. E. quarter of section No. 4 in T. No. 7, in R. No. 22 E., on the east side of the Milwaukie river.' It was in fact laid out on fractional lot 2, of the section named. The southeast quarter is upon the other side of the section and does not approach the river. Lot 2 bounds upon the river. A large lot delineated on the plat bounding upon the river is marked 'reserved for hydraulic purposes.' An island opposite to it is laid down upon the plat. Fractional lot 2, which is twice referred to in the boundaries as given in the deed, bounds upon the river. Parol evidence, not inconsistent with a written instrument, is admissible to apply such instrument to its subject. The designation of the 'southeast quarter' in the certificate of acknowledgment was a clerical mistake. The maxim 'falso demonstratio non nocet' applies. The proof in the case shows clearly where the plat was in fact located. As regards the statute, the plat was fatally defective and afforded no warrant to the recording officer for putting it on record. Nevertheless, its being there was a fact, and whether there or elsewhere, the reference to it in a deed for the purpose of fixing a boundary, is sufficient. 'That is certain which can be rendered certain.' Where a map or plat is thus referred to, the effect is the same as if it were copied into the deed. 'This is a familiar rule of construction, in all those cases wherein no other description is given in the title deeds, than the number of the lot on the Surveyor's plan of a township or other large tract of land.' Davis vs. Rainesford, (17 Mass., 211); McIver's Lessee vs. Walker et al., (4 Wheat., 445).

II. It is claimed that the deed is void because it was executed to convey lots designated upon a town plat not made in conformity to law, and which it was therefore penal to sell.

No lots are mentioned. The plat is referred to only for the purpose of boundary. The land with the boundaries is conveyed without reference to any subdivision. The fact that it had been illegally laid out and platted into lots and streets does not in any wise affect the deed.

III. It is objected that the deed from Prentiss to Church and Clark of August 4, 1847, in Lee's chain of title, and the deed from Church and Clark to Lee of July 7, 1848, were void, because they were made by grantors out of possession, when the premises were held adversely by other parties, under deeds apparently valid.

At the dates of those deeds the Coltons were in possession under a deed of the 22d of June, 1847, from James H. Rogers.

The only part of the description in that deed referring to the premises in controversy is as follows:

'Twenty-two acres of land more or less undivided, in fractional lot number two of section four in township seven, range twenty-two, together with one-half of the water power belonging to said fractional lot two, and also all the right, title and interest of the said parties of the first part in and to said lot two.'

A title to twenty-two acres undivided would have given the grantee no right to take exclusive possession of the mortgage premises. So far as the record discloses the facts, it appears that Rogers claimed entirely under sales for taxes. It will presently appear that they gave him no title, real or apparent, which he could convey to another.

IV. The tax deeds.

It is not denied that at the time Lee conveyed to Noonan, his chain of title was perfect, unless it was broken by one or more of the facts claimed...