Slaughter v. Bernards

• Decision Date: 22 October 1897
• Citation: 72 N.W. 977,97 Wis. 184
• Parties: SLAUGHTER v. BERNARDS.
• Court: Wisconsin Supreme Court

97 Wis. 184

72 N.W. 977

SLAUGHTER

v.BERNARDS.

Supreme Court of Wisconsin.

Oct. 22, 1897.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by B. C. Slaughter against Henry Bernards. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This was an action of ejectment. It was tried by the court and resulted in findings of fact and conclusions of law, covering all the issues raised by the pleadings, which may be stated in substance as follows: On the 12th day of February, 1840, Ramsay McHenry, a resident of the state of Maryland, was the owner in fee simple of the lands described in the complaint, situated in Dane county, Wis., which he on that day, by deed with full covenants, conveyed to George H. Slaughter. At the same time George H. Slaughter, by mortgage, conveyed the lands back to Ramsay McHenry to secure the payment of $720. Both deed and mortgage were duly recorded in the proper office in Dane county, Wis. George H. Slaughter entered into the actual possession of the lands and remained in such possession till he surrendered the same to Calvin G. Williams, as hereafter mentioned. On the margin of the record of the mortgage the following words appear: “This mortgage canceled by agreement, see pages 303, 304, vol. 4 of deeds. I. W. Bird.” At the pages referred to appears a record which was offered in evidence, purporting to be of an instrument executed August 5, 1843, witnessed by one witness and duly acknowledged in this state, signed by Ramsay McHenry and James McHenry Boyd, his attorney in fact, and George H. Slaughter, referring to the before-mentioned deed and mortgage by way of recitals, and declaring as follows: “By consent and agreement of the parties to said instruments they are hereby canceled and held for naught.” The only proof of the authority of James McHenry Boyd to execute any instrument for and in the name of Ramsay McHenry is a record offered in evidence, purporting to be of a power of attorney executed by Ramsay McHenry to James McHenry Boyd, April 29, 1843, and acknowledged before a notary public in the state of Maryland. The record bears date August 3, 1843. A record from the proper office, dated August 6, 1843, was received in evidence, purporting to be of a deed executed August 4, 1843, in this state, and duly witnessed and acknowledged, signed by Ramsay McHenry by his before-mentioned attorney, conveying the lands in question to Gabriel T. Long in trust, first, for the benefit of Mildred Ann Slaughter and subject to her control and disposal during her coverture with George H. Slaughter; second, after her death, in trust for George H. Slaughter, upon like condition; third, upon the death of George H. Slaughter, in trust for the benefit of the heirs of George H. Slaughter and Mildred Ann Slaughter, his wife. A record also was offered in evidence and received, of what purports to be a mortgage executed at the same date as the trust deed, whereby Gabriel T. Long, trustee, conveyed the land to Ramsay McHenry to secure the payment of $1,023.50. After the trust deed purports to have been made, the following mortgages, affecting the premises, and together covering all the premises in question, were made: May 10, 1848, George H. Slaughter, Mildred Ann, his wife, and Gabriel T. Long, trustee, to Calvin G. Williams, to secure the payment of $350, recorded September 23, 1848; September 16, 1848, between the same parties, to secure performance of the conditions of a bond, recorded September 26, 1848; October 23, 1847, Gabriel T. Long, George H. Slaughter and Mildred Ann, his wife, to Edward Campbell, to secure $144.83, recorded October 25, 1847. The several mortgages were foreclosed in chancery, all the mortgagors being made parties defendant. A judicial sale was made to Calvin G. Williams pursuant to the judgment of foreclosure rendered as to each such mortgage. Each such sale was confirmed and a sheriff's deed was duly issued to said Williams, and recorded, pursuant to each such sale, whereby, on or before March 27, 1857, he became possessed of all the title to the premises in question, and he was thereafter let into possession of such premises under said deed in 1857, and he and those claiming under him, have been in continuous, uninterrupted and adverse possession of the land from that time down to the commencement of this action. May 3, 1858, Thomas C. Baker duly recorded a tax deed covering the lands, which deed was duly issued to him on the tax sale of 1855 for delinquent taxes on the lands for the year 1854. The title thus conveyed to Baker, thereafter, through mesne conveyances, the last being recorded January 19, 1860, was vested in Calvin G. Williams. The title which Williams obtained through the conveyance to him, before mentioned, passed to his heirs upon his death, which occurred prior to 1868, and thereafter, through various conveyances, the last being a deed with full covenants from Jacob Lenz, dated October 15, 1868, recorded November 13, 1868, the title to the lands passed to and became vested in defendant. When the deed from Lenz to defendant was made the lands were inclosed, and defendant, under such deed, entered into possession of such lands, claiming title thereto by virtue thereof, exclusive of any other right, and has ever since been in such possession, exclusive, continuous and adverse to the whole world. This action was not brought till the expiration of more than 10 years after November 1, 1878. Defendant took possession of the premises as aforesaid without notice of any adverse claim thereto whatever. George H. Slaughter died January 4, 1894. Mildred Ann, his wife, died October 10, 1890. Plaintiff is their son and only heir at law. Under the laws of the state of Maryland, at the time of the execution of the pretended power of attorney from Ramsay McHenry to James McHenry Boyd, it was essential to the conveyance of lands in that state that the instrument of conveyance be acknowledged according to the laws of that state. Such power of attorney was not so acknowledged.

There were some other facts found by the court, but they are omitted as not necessary to the questions discussed in the opinion and not affecting in any way the result.

As conclusions of law the court found that by the deed of February 12, 1840, to George H. Slaughter, he became the owner in fee of the premises in question; that the cancellation instrument executed thereafter did not affect such title; that Calvin G. Williams acquired, through the sheriff's deeds on foreclosure, a good title in fee to the lands; that by the terms of the trust deed the trustee held the legal title, subject to the control of Mildred Ann Slaughter, and that the mortgages made by such trustee, Mildred Ann Slaughter and her husband, conveyed the whole estate to the mortgagees as security; that defendant, by reason of the facts, through the foreclosure proceedings, the sheriff's deeds based thereon, and the chain of title therefrom, down to him, became the owner in fee simple of the lands in dispute, October 5, 1868, and has so continued down to the present time; that Calvin G. Williams rightfully re-enforced his title by the Baker tax title, and that such title, by reason of the facts, inured to the benefit of the defendant and cut off the rights of plaintiff, if he, or those under whom he claimed, had any, at the time of the making of the tax deed; that plaintiff's action is barred by the statute of limitations of this state, and that defendant is entitled to judgment.

Judgment was entered in accordance with the findings and conclusions, and the plaintiff appealed therefrom on exceptions duly filed.Bashford, O'Connor & Aylward, for appellant.

Lamb & Lamb, for respondent.

MARSHALL, J. (after stating the facts).

There is no controversy but that, on the 12th day of February, 1840, Ramsay McHenry was the owner in fee simple of the lands described in the complaint, and on that day conveyed the same to George H. Slaughter and received back a mortgage thereon to secure $720. Was the title thereafter affected by the cancellation instrument? That is the first question presented by this appeal. The trial court found in the negative. To that appellant excepted, contending that the legal title was in McHenry under the mortgage, that an equitable interest only remained in Slaughter, which could be surrendered by acts of the parties and operation of law, without any conveyance in writing, and that the cancellation instrument, the trust deed made on the faith of such instrument, and the mortgage back from the trustee, establish a surrender by Slaughter to McHenry of the equitable title, an acceptance by the latter and action relying on such surrender and acceptance, which operated to merge the equitable in the legal title by estoppel. Section 2302, Rev. St., was then section 6, p. 162, St. 1839. It provides that “no estate or interest in lands, other than leases for a term not exceeding one year, * * * shall be * * * surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing,” etc., thus clearly recognizing the power to surrender a mere interest in lands, such as a lease for more than one year, or the equitable interest of a person under a land contract, without a conveyance in writing, by act or operation of law. O'Donnell v. Brand, 85 Wis. 97, 55 N. W. 154;Goldsmith v. Darling, 92 Wis. 363, 66 N. W. 397. In some jurisdictions the surrender and cancellation of an unrecorded deed, with intent to revest the title in the vendor, is given that effect by applying the doctrine of estoppel. Mussey v. Holt, 24 N. H. 248;Farrar v. Farrar, 4 N. H. 191. But the rule is the other way in this state. Parker v. Kane, 4 Wis. 1;Albright v. Albright, 70 Wis. 528, 36 N. W. 254;Rogers v. Rogers, 53 Wis. 36, 10 N. W. 2, which are in accord with the great weight of authority in this country and England. Walker v. Renfro, 26 Tex. 142; Bailey's Adm'r v. Campbell, 82...