Vilas v. Reynolds , 6 Wis. 214 ( 1858 )

By the Court,

Coin, J.

From the view which we have taken of this case, we do not deem it necessary to examine, in detail, all the questions presented for our consideration, by counsel, upon the argument of the cause. The first point we feel called upon to notice, is that made as to the correctness of the ruling of the circuit court, in admitting in evidence the record of the plat of the town of Madison, which was offered by the plaintiff below. And one observation will be sufficient to dispose of the question arising upon this point. The admission of the record of the plat in evidence, was objected to upon the ground that the plat itself was defective in many essential particulars, for not complying with the statute in force at the time it was made, (E. S., T. W.s 1839, page 149,) relating to the making and acknowledging of town plots, and recording the same ; and not being authorized by law to be recorded, a record of it, it was contended, was inadmissible in evidence. We presume the object of offering this record in evidence, was to determine the locus m quo — the place in which the premises claimed in the declaration were situated. The locality of the premises was a material point to be established. A witness familiar with them and with the plot, would be able to identify them from this record, and fix the locality where the disputed premises were situated. Conceding the plot was not originally made out according to law so as to entitle it to record, and that the record of it would be incompetent of itself to establish an independent fact, yet for the purpose for which it was used upon the trial of this case, merely to determine the locality of the premises by aid of other testimony, we think it was competent and proper. The plaintiff below, to make out his title to the property, introduced a deed from James Duane Doty to Hathan Goodell, conveying it — bearing date Feb. 25th, 1846, and derived title under that deed, by a conveyance from Goodell and wife, executed by their attorney, Henry S. Baird. The deed was signed by Doty as President and trustee of “ Four Lake Company.” The admission of the deed in evidence was objected to, but the objection was overruled, and an exception taken. It is now contended that the court erred in admitting this deed in evidence for the reason that it was not the deed of Doty, as an individual, but the deed of the “ Four Lake Company,” by their President and Trustee, J. D. Dot y; and that until it was shown that the “ Four Lake Company” owned the lots conveyed by the deed, and that Doty was authorized to convey them, the deed was inadmissible. The plaintiff showed that the title was in Doty in May, 1841, and insists that by his deed to Goodell, he conveyed to his grantee all the title which was vested in him as an individual, and as President and Trustee of the Four Lake Company. The proper construction of this deed therefore becomes an important question, not only from its bearing upon the case under consideration, but (as we were given to understand by the counsel,) from the amount of property in the city of Madison held under like conveyances. Hence we have given this deed a very careful examination, and have arrived at the conclusion that the construction given the deed by the counsel of the plaintiff below, is the correct and proper construction to be placed upon it.

In the construction of deeds it is said to be a maxim of the highest antiquity in the law, that all deeds shall be construed favorably, and as near the apparent intention of the parties as possible, consistent with the rules of law. And when the intention is clear, too minute a stress ought not to be laid on the precise and strict meaning of words, and the intention is to be gathered from the entire deed, and not from the language of any particular part of it. 4 Cruise’s Dig., Title 32, chap. 19; Allen vs. Holton, 20 Pick., 458. Keeping these familiar rules of construction in mind, we find upon examining this deed, that it purports to be a deed between James D. Doty as President of the Pour Labe company, of the first part, and Nathan Gcod-ell of the second part. The description of the parties and the style Doty has adopted in signing the deed, favor the idea that it was intended to be the deed of Doty in his representative, in contradistinction to his individual, capacity. But if w;e examine the granting part of the deed, and the estate conveyed, we find in substance the following language. That the said party of the first part for and in consideration, &c., gives, grants, bargains, sells, remises, releases, aliens, and confirms, unto the party of the second part, and to his heirs and assigns, the lots in controversy, with the hereditaments and appurtenances thereunto belonging, “ and all the estate, right, title, interest, “ claim, or demand whatsoever of the said party of the first “ part and of Ms constituents, either in law or equity.” By this language all the estate and interest of the party of the first part, and of Ms constituents, in the premises, passes to the grantee; a mode of expression entirely inconsistent with the idea that Doty conveyed in a fiduciary capacity alone. For if the party of the first part be indeed the Four Lnke company, what was the estate and interest of the constituents in the premises ? Who were the constituents referred to, if not the Four Lake company ? If the grant is to be limited to conveying only the title of the company, and if Doty was a fiduciary vendor alone, then the estate of the party of the first part, and the estate of the constituents, was one and the same estate, and the language of the deed becomes senseless and unmeaning. It would all pass in the grant of the estate of the party of the first part, and the subsequent grant of the estate of his constituents would be unnecessary and of no effect We therefore think it manifest from this clause of the deed, that it was the intention of the parties that Doty should convey to his grantee, all the title and interest which might be vested in him individually, as well as all the title and interest which he might properly and lawfully convey as the President and Trustee of the Pour Lake Company. And there is still another clause of the deed which goes strongly to .support this construction. The covenants of the deed are as follows: The said party of the first part, for himself, his eonsüi/uents, his heirs, executors and administrators, does covenant, grant, bargain, and agree, to and with the party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents, he is well seized of the premises described, as of a good, sure, perfect, absolute and indefeasible estate of inheritance; recognizing in this language, a distinction between the party of the first part and the constituents; showing that the covenantor expressly intended that his liability should be more than coextensive with his fiduciary capacity, and that he was'personally hound by the covenants. It has happened undoubtedly, that fiduciary vendors, from inadvertence or design, have entered into covenants of greater scope than the law exacted of them, and thereby become personally liable; but we think the fair inference in this case is, that the covenant was intended to be co-extensive with the estate granted, and not more so, applying to, and binding the individual and the company. So that to effectuate the intention of the parties, as that intention is gathered from the whole deed, we are of the opinion that it must he held to pass whatsoever title was in the grantor either personally or as trustee.

The defense set np was that all the right, title, and interest of Doty in the property had been legally levied upon and sold in 1842, by virtue of two several executions issued upon judgments against him, in favor of Alanson Sweet; and that this title had subsequently, by mesne conveyances, become vested in the defendant. A transcript of a judgment obtained in the district court of Brown-county, and of a judgment obtained in Milwaukee county, were offered in evidence. Transcripts of the writs of execution, and of the sheriff’s certificates of sale were also introduced. Yarious objections were taken to the admission of these transcripts, and were all properly overruled. We shall not stop now to consider these objections taken to the transcripts of the judgments further than to observe that we deem them competent and sufficient evidence in this action to show valid judgments against Doty. It is insisted however that the transcript from Brown county is not sufficient to show, a valid judgment against Doty, for the reason that there is no order, consideration, or judgment of the court, that the plaintiff do recover, &e.; and we have been referred to the case of Wheeler vs. Scott, 3 Wis., 362, to support this position. The cases are not similar. In the case of Wheeler vs. Scott, the existence of a judgment was drawn in question by a direct issue, on a writ of error; and not collaterally, as in the present case, and the record sent up by the clerk did not show any final judgment. The writ of error was therefore dismissed. Enough appears from the transcript of the Brown county record to make out prima facie, at least, the existence of a judgment against Doty; which was all that was necessary until the record was impeached. Atchinson vs. Roselip et al., 4 Chand., R. 12; Jackson vs. Rowland, 6 Wend., 666. It appears that although the transcripts of the writs of execution were admitted in evidence, still that the court rejected the sheriff’s deed, for reasons which in part apply to the executions, as well as the deed. The deed is quite full and regular, reciting the substance of the executions, and the proceedings had by the officer under the executions down to, and including the sale. It has been contended that the sheriff’s deed was properly rejected, because, from the returns upon the executions, which were the foundation of the deed, it was apparent that the levy and sale were illegal and void. Eirst it is objected that the levy was insufficient, because the return shows that it was not upon the land of Doty, hut upon his right a/nd interest in the land. We do not appreciate the force of this objection. We suppose, correctly and philosophically speaking, that it is the right, title, interest, or in other words, the property, of the defendant in lands, which is, sold; and that although this interest and estate are really intangible, yet in common parlance, we say that it is the right, interest, or estate whiohis levied upon and sold. But only constructively or by figure of speech can it be said that an officer has seized upon, and taken into his possession, this interest; and by a still bolder figure, that he had levied upon (raised up Jdr. lever), the land itself. But such refinements upon language are unprofitable and lead astray, when applied to the proceedings of courts and the affairs of men. We have not found a case which decided that a sale was bad, because the officer returned that he had levied upon the right, title, and, interests of the defendant in the land; instead of saying that he had levied upon the land itself; and if a case can be found which holds to so great a degree of strictness in reference to officer’s returns upon executions, we should be disposed to disregard it, unless supported by stronger reasons, for making such distinctions than any which occur to our minds. Another objection taken to the sale was that it did not appear from the returns of the sheriff, that there were no goods or chattels from which to make the money. We do not deem this an essential part of a sheriff’s return, or at all events such an omission as would justify the setting aside the sale when the title has passed into the hands of innocent purchasers. By the writ, the officer was commanded to make the amount of the judgment out of the goods and chattels of the judgment debtor, not exempt from sale ; and in default of goods and chattels, to cause the amount to be made of the real estate. Is it not fair to presume in the absence of all evidence to the contrary, that the officer did his duty and complied with the exigencies of the writ ?

But a still further objection was taken to the levy and sale; which is, that it was not made in parcels ; and this is stated to he one of the principal grounds upon which the deed was ruled out. It is said that at the time of the sale the lands in question were laid off into village lots, and were known as such, and should have been levied upon and sold in lots, instead of being levied upon and sold according to the public surveys. Now whatever weight there might have been, under other circumstances, in this objection, we think it is entitled to none, when it appears that the levy and sale were made in this manner under the express direction of the defendant, Doty. He surely had a right to waive all the benefit of the statute which required that the land should be sold in lots, and to consent and order that the sale should be made as it was. It was a provision of law calculated to protect his interests, and a provision that the sheriff might, and probably would have observed had he not been instructed by Doty to do otherwise.

To permit the sale now to be set aside and declared void for an irregularity of this kind, would be most monstrous injustice. The defendant offered to prove by Bird, the officer who made the levy and sale, that the levy and sale of the lands mentioned in said executions and in the certificate of sale, were made under the directions of Doty, and in compliance with his orders. The testimony in no wise 'went to contradict or impeach the return made by him as an officer, and was competent evidence. And we suppose it was competent to show by Doty himself the same facts. This was sufficient to obviate all objection to the manner of making the levy and sale. It is to be observed that the effect of this testimony was not to destroy and upset titles, but to uphold and support them. Again, it is insisted that there is no return of the sheriff on the vendi exponas from Milwaukee county, of any levy and sale. ¥0 do not think that this objection is supported by the record.

But it is said that the testimony of Doty, if admitted, shows that the sale by the sheriff was made for his benefit, and therefore nothing passed to the purchaser at such sale, the same being fraudulent and void as to creditors, or subsequent purchasers. Eraud is not to be presumed, and if it really existed the testimony of Doty does not clearly show it. We give no opinion as to whether this sale could be overhauled in equity. But we do not think it can in an action at law. The conclusion to which we have arrived, is, that the ruling out of the sherriff’s deed was error, and for this reason the judgment of the circuit court must be reversed, and a new trial ordered.