Sands v. Kaukauna Water Power Co.

• Decision Date: 23 September 1902
• Citation: 91 N.W. 679,115 Wis. 229
• Parties: SANDS v. KAUKAUNA WATER POWER CO. ET AL.
• Court: Wisconsin Supreme Court

115 Wis. 229

91 N.W. 679

SANDS

v.KAUKAUNA WATER POWER CO. ET AL.

Supreme Court of Wisconsin.

Sept. 23, 1902.

Appeal from circuit court, Outagamie county; John Goodland, Judge.

Action by B. Aymar Sands, trustee, against the Kaukauna Water Power Company, impleaded, etc. Judgment for plaintiff. Defendant water power company appeals. Reversed.

Action to foreclose a mortgage. The complaint is in the usual form. The mortgage is in the form of a trust deed. It was given to the plaintiff as trustee to secure the payment of the principal of and interest on 75 $1,000 bonds, 63 of which were issued and 58 of which were outstanding at the time of the commencement of the action. The mortgage or trust deed, among others, covered lands having appurtenant thereto an improved water power. It further covered the rents to be derived from the property, and in that regard contained these provisions:

“It is hereby provided that until default shall be made in the payment of the interest upon the said bonds secured by these presents, or in the payment of said bonds at the maturity thereof, or in the performance of the covenants and agreements herein contained to be kept and performed by the said party of the first part, the said party of the first part, its agents, appointees and assigns, shall be entitled to have, hold, use, possess and enjoy the said premises hereby mortgaged with the appurtenances, and to receive the rents, issues, and profits thereof to its own use and benefit, except as hereinafter provided.”

“It is further provided that the said party of the first part, its successors or assigns, may at any time during the life of this mortgage, lease all or any or either of the lots contained in said blocks numbered one and two in said plat of Ledyard, together with the water power in said canal, and all other rights and privileges appurtenant to said lots or any or either of them. That whenever said lease or leases shall be approved in writing by the said party of the second part or his successor or successors in said trust, then the same and the premises, water power and all other rights and privileges described therein shall no longer be subject to the lien of this mortgage except that this mortgage, during the life thereof, shall be a lien upon the rents reserved in said lease or leases and shall entitle said party of the second part, or his successor or successors in said trust, to collect and receive said rents and the said party of the second part shall apply the said rents, firstly, towards the payment of the interest due upon said bonds, secondly, towards the payment of any taxes due upon the property covered by this mortgage, and thirdly, shall hold one-half of the balance after making the said payments, as a sinking fund for the payment of said bonds, and pay the other half of said balance to the party of the first part hereto; and it is further provided that the said party of the first part may at any time during the life of this mortgage, sell and convey any portion of the premises hereinbefore described and embraced in this mortgage, subject to the approval of the said party of the second part in writing, and when so approved, the lots or parcels of land so sold shall be released from the effect of this mortgage, provided that all sums realized from such sales shall be paid to said party of the second part and held by him as a sinking fund for the payment of said bonds.”

Subsequent to the making of the instrument various portions of the premises with water power appurtenant thereto were leased by the mortgagor with the approval of the trustee, so as to make the release clause operative. The litigated issue joined by the complaint and answer involved the question of whether the release clause referred to the mortgage lien upon the land or merely the leasehold interest therein. The court decided the proposition in favor of the plaintiff and ordered judgment accordingly, which was accordingly rendered.

Fish, Cary, Upham & Black, for appellant.

Quarles, Spence & Quarles, for respondent.

MARSHALL, J. (after stating the facts).

This appeal turns on the meaning of the word “premises” as used in the release clause of the trust deed. The trial court held to the technical meaning thereof in deciding this case, that is, that it was used in the same sense as that attributed to such word when it occurs in the habendum clause of a deed, to the estate granted, not to the corpus of the particular parcel of realty referred to. That such is its technical meaning may be conceded. Farquharson v. Eichelberger, 15 Md. 63;Miller v. Ewing, 6 Cush. 34;Holbrook v. Debo, 99 Ill. 372;Berry v. Billings, 44 Me. 416, 69 Am. Dec. 107. It is difficult, however, to discover that it was used in that sense in the clause in question. The word is commonly used in referring to distinct parcels of real estate. The law dictionaries give that as the common or popular meaning. 2 Rap. & L. Law Dict. 996. We often refer to “leased premises,” “advertised premises,” “premises trespassed upon,” and use many other expressions in which the word plainly refers to the land and not to any particular estate therein. In Abbott's Law Dictionary it is said that such use “seems now to have the support of widespread and frequent usage.”

So rules of law require that the technical meaning of the word should not be preferred to the common, everyday meaning, when it is used outside the habendum clause of a deed, otherwise than in a connection rendering the technical sense plainly appropriate. Amos v. City of Fond du Lac, 46 Wis. 695, 701, 1 N. W. 346;Cummings v. Dearborn, 56 Vt. 441;Bandalow v. People, 90 Ill. 218;Winlock v. State, 121 Ind. 531, 23 N. E. 514;State v. French, 120 Ind. 229, 22 N. E. 108, 735;Hilton's Appeal, 116 Pa. 351, 9 Atl. 342;New Jersey Zinc Co. v. Boston Franklinite Co., 15 N. J. Eq. 418, 462. All the law dictionaries recognize that at this day “premises” generally speaking, when reference is made to realty, in the popular sense, means land and...