Weld v. Johnson Manuf'g Co.

Citation54 N.W. 335,84 Wis. 537
PartiesWELD ET AL. v. JOHNSON MANUF'G CO.
Decision Date31 January 1893
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

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

Action of ejectment by Amos C. Weld, Howard A. Weld, Ray A. Weld, and Pearl E. Weld, by C. H. Forward, guardian ad litem, against the Johnson Manufacturing Company. From a judgment for defendant, plaintiffs appeal. Reversed.

The other facts fully appear in the following statement by LYON, C. J.:

The action is ejectment to recover an undivided one half of 13 40-acre lots of land in Shawano county, and damages for the value of certain timber cut upon and removed therefrom by the defendant company. The plaintiffs are the minor children and only heirs at law of Julius T. Weld, who died intestate in July, 1888, seised of the lands claimed. The other undivided half thereof was owned by one R. S. Johnson. Julius T. Weld also died seised of other lands in Shawano county, and of certain lands in Waupaca county. His widow, Ada L. Weld, was duly appointed guardian of the persons and estates of her children, the plaintiffs. In August, 1888, the guardian applied to the county court of Waupaca county, or the judge thereof, for a license to sell all the real estate inherited by the plaintiffs from their father, and obtained a license to do so. Such sale was made in October, 1888, to R. S. Johnson, and was afterwards confirmed by the county court, and a deed of the land thus sold was executed by the guardian to Johnson, pursuant to such sale. Immediately thereafter, Johnson and his wife executed a deed of the lands in controversy (together with other lands) to the defendant, the Johnson Manufacturing Company. The defendant company has taken considerable quantities of timber from the lands claimed in this action. In 1890, Mrs. Weld conveyed her unassigned dower interest in such lands to Johnson. The foregoing facts are undisputed. The only question litigated in the trial was, is the guardian's deed of the lands in controversy a valid conveyance of such lands to Johnson? The grounds upon which the validity of such instrument is denied by plaintiffs are sufficiently stated in the opinion. The court held the conveyance valid, and gave judgment for the defendant. Plaintiffs appeal from the judgment.Phillips & Kleist, (Gary & Forward, of counsel,) for appellants.

F. C. Weed, (G. W. Bird, of counsel,) for respondent.

LYON, C. J., (after stating the facts).

The controlling question in the determination of this case is whether the deed executed by the guardian of the plaintiffs to Johnson is a valid conveyance to him of the lands in controversy. If the question be answered in the affirmative, the judgment is right; if in the negative, it cannot be upheld. Several irregularities and defects in the procedure which preceded the attempted sale of the land and the confirmation thereof, either of which, it is claimed, is fatal to the validity of the sale, are alleged on behalf of plaintiffs. One of these is, we think, well taken, and hence the others will not be noticed. Such defect is the want of a proper bond, as required by section 4004, Rev. St. In the only bond given it is recited that “whereas, the above bounden Ada L. Weld, in her capacity of guardian, has been licensed by an order of the said county court made on the 8th day of October, A. D. 1888, to sell all the real estate of said J. L. Weld, to wit, commencing at a point,” etc. Then follows a description of certain lands in Waupaca county. No mention is made therein of any lands in Shawano county. The condition of the bond is as follows: “Now, therefore, if the said Ada L. Weld do and shall justly and truly account for all the proceeds of sale of said real estate, and dispose of the same according to law, and perform all orders and decrees of said court by her to be performed in the premises, then this obligation shall be void; otherwise to remain in full force and virtue.” That this is a bond for the proper performance by the guardian of her duty in respect to the sale of the Waupaca county lands described therein, and those only, scarcely admits of doubt. There is nothing in the bond to show that the license of sale included lands in Shawano county, or that any such lands belonged to the estate of Weld. A perusal of the bond fails to suggest to the mind anything of the kind, and a fair construction of the terms of the instrument excludes from its operation all lands not specifically described therein. To give the instrument this construction does not require resort to the rule, often and recently laid down by this court, that the obligation of the surety is strictissimi juris, and nothing can be taken against him by intendment or inference. State v. McFetridge, 54 N. W. Rep. 1, (recently decided,) and cases there cited. True, the recital in the bond is that the guardian had been licensed to sell all the real estate of her intestate, but the fair inference from what follows therein...

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10 cases
  • Hill v. Federal Land Bank
    • United States
    • United States State Supreme Court of Idaho
    • June 4, 1938
    ...and of no effect." In Michigan (Stewart v. Bailey, 28 Mich. 251), Indiana (McKeever v. Ball, 71 Ind. 398), Wisconsin ( Weld v. Johnson Mfg. Co., 84 Wis. 537, 54 N.W. 335), and Nebraska ( Bachelor v. Korb, 58 122, 78 N.W. 485, 76 Am. St. 70), they considered statutes substantially as follows......
  • Bachelor v. Korb
    • United States
    • Supreme Court of Nebraska
    • February 23, 1899
    ......Cilley, 8 O. St. 613; Sibley v. Waffle, 16 N.Y. 180; Halleck. v. Moss, 17 Cal. 340; Johnson v. Johnson, 30. Ill. 215; Rankin v. Miller, 43 Ia. 11; Lyon v. Vanatta, 35 Ia. 521; Blodgett v. ... bond required by law was not given. (Hubermann v. Evans, 46 Neb. 784; Weld v. Johnson Mfg. Co.,. 54 N.W. 335 [Wis.]; Holden v. Curry, 55 N.W. 965. [Wis.]; Babcock v. Cobb, ......
  • Merchants' Nat. Bank v. Greenhood
    • United States
    • United States State Supreme Court of Montana
    • September 30, 1895
    ...Supp. 6;Moore v. Beaman, 112 N. C. 558, 17 S. E. 676:Hudson v. Jordan, 110 N. C. 250, 14 S. E. 741;Weld v. Manufacturing Co., 84 Wis 537, 54 N. W. 335;State v. Coulter, 40 Kan. 673, 20 Pac. 525;Weathersbee v. Farrar, 98 N. C. 255, 3 S. E. 482;Lovenberg v. Bank Tex. Sup. 5 S. W. 816;Schricht......
  • Hughes v. Goodale
    • United States
    • United States State Supreme Court of Montana
    • November 25, 1901
    ...v. Flanders, 30 Mich. 336. The interpretation of similar statutes was involved in McKeever v. Ball, 71 Ind. 398;Weld v. Manufacturing Co., 84 Wis. 537, 54 N. W. 335, 998; in Bachelor v. Korb, 58 Neb. 122, 78 N. W. 485, 76 Am. St. Rep. 70; and in Goldsmith v. Gilliland (C. C.) 23 Fed 645. In......
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