Pepin Co. v. Prindle

• Decision Date: 06 November 1884
• Citation: 21 N.W. 254,61 Wis. 301
• Parties: PEPIN CO. v. PRINDLE.
• Court: Wisconsin Supreme Court

61 Wis. 301

21 N.W. 254

PEPIN CO.

v.PRINDLE.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Appeal from circuit court, Pepin county.

This is an action of ejectment, with the complaint in the form prescribed. The answer consists of an admission of the organization of the county, and a general denial. The jury was waived, and the cause tried by the court. The facts are admitted and agreed to by the stipulation of the parties, which the plaintiff offered in evidence, and was admitted without objection. January 23, 1884, the court made and filed its findings and decision in said action to the effect (1) that the plaintiff is not the owner or entitled to the possession of the real property mentioned in the complaint; (2) that the defendant is the owner of and in possession of the same. And as conclusion of law it was found that the defendant should have judgment for costs. The defendant having failed to enter and perfect judgment as required by chapter 202, Laws 1882, the clerk of the court, as therein authorized and required, did, May 16, 1884, prepare and enter judgment therein in accordance with said finding of the court, but without costs to either party. From that judgment the plaintiff brings this appeal.John Fraser and L. M. Vilas, for appellant.

Henry Cousins and H. E. Houghton, for respondent.

CASSODAY, J.

The deed of the land in question was given to the county by the defendant, August 13, 1871, “upon the express condition and term that the said county of Pepin erect thereon within five years a court-house for the use of said county, and shall keep and maintain the same thereon for the space of ten years, upon the express condition.” The court-house was commenced in 1873, and finished and completed in March, 1874, when the county entered upon and into the possession, use, and occupancy thereof as such court-house, and continued to use the same as such until December 15, 1881, when the village of Durand, in which the land was situated, ceased to be the county seat, and the village of Arkansaw became such county seat, in pursuance of a vote of the electors of the county had and taken November 8, 1881, and the proclamation of the governor of the result of said vote and removal, published December 15, 1881, and was no longer used or occupied as a court-house. The county continued to store some items of personal property there, and January 5, 1883, the district attorney of the county began to occupy it and continued such occupancy until August 15, 1883, when the defendant re-entered and took possession of the premises, unless his protest and claim of possession, January 5, 1883, was such re-entry.

The learned counsel for the plaintiff frankly concedes that the conveyance was made upon condition subsequent and for a nominal consideration. Being such, he is justified in claiming a strict construction. Horner v. Railway Co. 38 Wis. 174;Lawe v. Hyde, 39 Wis. 346;Drew v. Baldwin, 48 Wis. 532; S. C. 4 N. W. REP. 576;Wier v. Simmons, 55 Wis. 643;S. C. 13 N. W. REP. 873;Mills v. Evansville Seminary, 58 Wis. 135;S. C. 15 N. W. REP. 133;Barrie v. Smith, 47 Mich. 130;S. C. 10 N. W. REP. 168;Doe v. Butcher, 6 Q. B. 115. Under such construction he claims there was no breach. This is on the theory that the first condition in the deed was satisfied by the erection of the building, and the second by keeping and maintaining the building so erected without any reference to the county seat. But, as observed by counsel, when the deed was given, Durand was, and for many years had been, the county seat. At the time the deed was made, the county seat could not be removed until the point to which it was proposed to remove the same should be fixed by law, and a majority of the voters of the county, voting on the question, should vote in favor of its removal to such point. Section 8, art. 13, Const. But soon after the deed was given that provision of the constitution was amended so as to prohibit the legislature from enacting any special or private law “for locating or changing any county seat.” Amendm. art. 4. Thereupon, the legislature did, by general law, provide for locating and changing any county seat. Chapter 89, Laws 1872; amended, chapter 407, Laws 1876; section 655, Rev. St. Here, the “seat of justice” for Pepin county (section 4, c. 15, Laws 1858) was located and established at Durand prior to the deed, in accordance with the laws then in existence, and was removed from thence to Arkansaw in pursuance of the laws so enacted after the execution of the deed.

The statute provides, except in special cases, that “each county shall at its own expense provide at the county seat a court-house, a jail, fire-proof offices, and other necessary buildings suitable to their proper uses, and keep the same in good repair.” Section 656, Rev. St. So the county court must be held at the county seat. Section 2440. These provisions are substantially the same as those in existence when the deed was executed. Section 16, c. 13, § 1, c. 117, and §§ 16 and 17, c. 119, Rev. St. 1858. True, the words “at the county seat” were not found therein, but the statutes did provide, except in special cases, that every sheriff, clerk of the circuit court, register of deeds, county treasurer, and clerk of the board of supervisors should keep his office “at the seat of justice of his county, and in the office provided by the county.” Section 156, c. 13, Rev. St. 1858; section 700, Rev. St. The statute also provided that the county court should be held at the time and place established by law. Section 1, c. 117, Rev. St. 1858, as amended. Of course, the courts were necessarily to be held at the seat of justice, because it was such holding in pursuance of law that characterized the place as the seat of justice. So the building in which such courts were permanently held became, by virtue of such holding and the law authorizing the same, the court-house. The mere fact that when the exigency of the case requires it the court may temporarily be held in a different building, does not prevent the building constructed for the courts permanently from continuing to be such court-house, notwithstanding such building in which the courts are from necessity so temporarily held is to “be deemed the court-house for the time being for all purposes.” Section 656, Rev. St. From all these things it is evident that a county can only have one county seat, and that the court-house must be at the county seat, except in the special cases prescribed, when from necessity courts may be temporarily held elsewhere. None of the special cases prescribed in the statute are applicable here. Durand ceased to be the county seat December 15, 1881, when Arkansaw became the county seat--the seat of justice for Pepin county. From that time the courts and offices of the county have been necessarily held at the latter place. At that place the courts of the county were necessarily held in a building known as and which in law constituted the court-house of and for the county. Since that time the building in question has not in any sense been the court-house nor a court-house. The removal of the county seat necessitated the removal of the court-house to the new seat of justice. Long prior to that, it had been erected as a court-house for the use of the county, and kept and maintained as such until the removal of the county seat to Arkansaw. Since that time it has been an empty building where the courts had formerly been held. By the conditions of the deed, the county was not only to erect “a court-house for the use of the said county” on the land in question, but was also to “ keep and maintain the same thereon for the space of ten years.” Obviously, the 10 years did not begin to run until the court-house was erected in March, 1874, for it was the completed court-house for the use of the county which was thus to be kept and maintained for the space of 10 years. This the county failed to do, unless the mere fact that the building remained upon the land after the county seat had been removed to another village according to law was the keeping and maintaining of “a court-house for the use of said county” on this land within the meaning of the language of the condition. Such a construction would do violence not only to the sense conveyed, but also to the language employed. It would be more narrow and technical than is implied in the word “strict” or “literal,”--it would be extremely finical. As the building was not kept and maintained as a court-house for the space of 10 years after its erection, we must hold that the second condition in the deed was broken. This condition, annexed to the grant, was not merely nominal, but substantial, within the meaning of section 2070, Rev. St. Barrie v. Smith, supra.

The grantor never waived the condition by allowing the premises, with his knowledge and without his objection, to be used for other purposes, or increased in value by permanent improvements. Barrie v. Smith, supra; Sharon Iron Co. v. City of Erie, 41 Pa. St. 341; Hammond v. Railway Co. 15 S. C. 10;Mills v. Evansville Sem., supra; notes to Gray v. Blanchard, 1 Lead. Cas. Amer. Law, R. P. 146-148; Crass v. Carson, 44 Amer. Dec. 745-748; Kenner v. American Cont. Co. 9 Bush, 202. Here there was no change in the use of the building, nor any improvements put upon it, after the removal of the county seat, and prior to the time when the defendant actually re-entered,--certainly not prior to the time when he claimed possession by reason of the breach, and protested against the occupancy by the district attorney. This was equivalent to a re-entry. Horner v. Railway Co., supra; Langley v. Chapin, 134 Mass. 82;Barrie v. Smith, supra; Gray v. Blanchard, 1 Lead. Cas. Amer. Law, R. P. 143, and cases there cited. The forfeiture of such condition is a matter of strict right, and cannot be defeated merely because the grantee paid a valuable consideration for the conveyance, or made valuable...