State v. Jewell

• Decision Date: 08 April 1947
• Parties: STATE v. JEWELL et al.
• Court: Wisconsin Supreme Court

250 Wis. 165

26 N.W.2d 825

STATE

v.JEWELL et al.

Supreme Court of Wisconsin.

April 8, 1947.

Appeal from a judgment of the Circuit Court for Burnett County; Carl H. Daley, Judge.

Modified and affirmed.

This action was begun on the 25th day of June, 1945, by the state of Wisconsin, plaintiff, against Henry Jewell and Ella G. Jewell, defendants, in which a declaratory judgment was sought determining the rights of the parties to certain lands in the county of Burnett. There was a trial, the court found in favor of the plaintiff and judgment was entered accordingly on January 30, 1946, from which the defendants appeal.

The facts will be stated in the opinion. Doar & Knowles, of New Richmond, and S. J. Auringer, of Grantsburg, for appellants.

John E. Martin, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., and Beatrice Lampert, Asst. Atty. Gen., for respondent.

ROSENBERRY, Chief Justice.

On February 2, 1931, the state highway commission, pursuant to sec. 83.08, Stats. 1929, entered an order relocating a portion of state trunk highway 87 in Burnett county, including among other parcels the one here in question. The county highway committee as was its duty entered into negotiations with one Esther Lindgren for acquisition of the lands required for the relocation. Esther Lindgren conveyed a portion of the land necessary for the relocation to Burnett county by conveyance dated April 29, 1931. This conveyance was not recorded in the office of the register of deeds and apparently was not filed in the office of the county clerk.

On the 9th day of March, 1944, Esther Lindgren conveyed to Henry A. Jewell a parcel of land which included the property in dispute and other property without excepting from the deed the portion she had previously conveyed to Burnett county. The tract in dispute is a part of the northeast quarter of section 35, six rods wide and twelve rods long, township 37 north, upon which was situated an oil station.

The defendants went into possession of the parcel in question and made additional improvements.

The Lindgren deed was dated March 9, 1944. The conveyance to the county of Burnett was made in April, 1931. The grant from Mrs. Lindgren was in the following language: ‘Does hereby grant and convey to Burnett County, Wisconsin, for highway purposes as long as so used, the lands of said owner necessary for said relocation, shown on the said plat and described as follows, to-wit:’ Then follows a detailed description which it is not necessary to repeat.

It is the contention of the defendants that the deed to Burnett County not having been recorded prior to the recording of the deed of Mrs. Lindgren by which the defendants obtained title, as to them the conveyance is void under sec. 235.49, Stats.1931. The plaintiff commenced this action asking for a declaratory judgment adjudging the rights of the parties.

The first contention of the defendants and appellants is that the state is without authority or power to bring an action for a declaratory judgment. Section 269.56(2) relating to declaratory judgments provides: ‘Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, * * * may have determined any question of construction or validity arising under the instrument, * * *.’

Section 370.01(12) provides: ‘The word ‘person’ extends and applies to bodies politic and corporate', which clearly includes the state, which is a body politic.

Section 20.49 provides: ‘There is appropriated to the state highway commission * * * (4) the sum required to meet the provisions of section 84.03(3).’

Section 84.03(3) provides: ‘The appropriation made by section 20.49(4) shall be allotted by the state highway commission for the construction, reconstruction and improvement of the state trunk highway system. * * *’

Section 84.07(1) provides: ‘The state trunk highway system shall be maintained by the state at state expense.’

Under these provisions of the statutes, the state has a sufficient interest in the subject matter of this action to entitle it to bring and maintain this action.

The defendants in their answer also ask for a declaratory judgment adjudging the rights of the parties.

In the deed to the defendants after the granting clause, the description of the property, there appeared the following recital: ‘Subject to the right of way of Highway No. 87 on the east side of the parcel above described.’ At the time the deed was executed State Trunk Highway 87 had been improved and in use for many years.

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Section 235.49 by virtue of which the defendants claim that their right to the premises is superior to that of the plaintiff provides: ‘Every conveyance of real estate within this state hereafter made (except patents issued by the United States or this state, or by the proper officers of either) which shall not be recorded as provided by law shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate or any portion thereof whose conveyance shall first be duly recorded.’

It is conceded that the defendants paid a valuable consideration for the conveyance and that they are subsequent purchasers. The question is, are they purchasers in good faith? If they had notice or information which if pursued would have led to knowledge of the actual facts, then they are not purchasers in good faith. Helms v. Chadbourne, 1878, 45 Wis. 60.

It is a well established rule that a person is charged with notice of the contents of the instrument by which he takes title and all the facts which would be disclosed with a reasonable diligent search. 39 Am.Jur. p. 246, sec. 22, and cases cited. Pringle v. Dunn, 1875, 37 Wis. 449, 19 Am.Rep. 772.

A part of the tract conveyed by Mrs. Lindgren was occupied as a highway. Where one occupies a part of the premises conveyed his occupancy extends to the boundaries of the land described in the instrument under which he claims. Land & Loan Co. v. Kesler, 1912, 150 Wis. 283, 136 N.W. 625;Childs v. Nelson, 1887, 69 Wis. 125, 33 N.W. 587;Ovig v. Morrison, 1910, 142 Wis. 243, 125 N.W. 449.

Having knowledge that the premises granted were subject to the rights of the state as established by the boundaries of state highway 87, the defendants were charged with notice of the rights of the public. The possession of real estate is generally considered constructive notice of rights of the possessor, whether the possession is sought to be used for the purpose of charging a purchaser with notice of an outstanding equity, or whether it is sought to charge a subsequent purchaser with notice of an unrecorded instrument and thereby defeat his right to protection under the recording acts. It is so held in the United States courts and in 28 states of the Union. 55 Am.Jur. 1087, sec. 712, and cases cited.

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