Benedict v. Horner , 13 Wis. 256 ( 1860 )

By the Court,

Dixoít, C. J.

Conceding that the conveyance from Spencer S. Benedict and wife and Walter M. Boekwell and wife to the appellant, is not void for uncertainty, but that it falls within that class of ambiguities, sometimes called patent, which may be explained by parol evidence (see 2 Phillips on Evidence, Cowen & Hill’s and Edwards’ notes, page 747, note 575, and cases there cited, and 1 Grreenleaf on Ev., §§ 297-300) pand that the admissions of Spencer S. Benedict, made at the time he acquired the title to the land in question, as to the manner in which he procured it and the consideration which was paid, were properly received in evidence (1 Grreenl. Ev., § 189), neither of which propositions can be said to be entirely rmsustained by principle or authority, still I do not think that the testimony introduced sufficiently establishes that the premises in suit are within the general description contained in the deed. In all such cases, where the property conveyed is described on the face of the deed, by terms which in themselves are doubtful and inadequate to its perfect designation, but which refer to extrinsic facts and circumstances for the ascertainment and completion of the meaning, the burden of showing such facts and circmstances is with the party claiming the benefit of such deed. And this he must do by proof which fairly preponderates in his favor, and which leaves nothing to rest upon conjecture or mere probability of fact. The case of the appellant in this respect depends upon the testimony of a single witness, wbo neither knows nor pretends to know anything about the facts themselves. The which he gives is of a kind which is always to be received with the greatest caution and scrutiny. He professes to testify only to the oral admissions of Spencer S. Benedict, the person through whom both parties claim title. His evidence is given under circumstances of great disadvantage. The conversation took place some fourteen years before the trial, and at a time and in a manner which were not calculated to fix his attention or create a lasting impression upon his mind. The tenor of his testimony shows this. He speaks doubtingly, as if under an effort to recall something which had long since passed from his memory. If therefore he had testified to an admission by Spencer S. Benedict, it is very doubtful whether it ought to turn the scale in favor of the appellant. But the great difficulty is that, conceding to his testimony all the weight which might be given to any, it does not show that Spencer S. Benedict ever made the admission claimed. All of it which can really be said to be pertinent and material, is contained in his answer to the last cross-interrogatory. In that answer he says, that in the summer of 1846, he thinks, S. S. Benedict came to Kenosha to settle an indebtedness of Mr. Nichols to the firms of Lewis Benedict & Son and Lewis Benedict & Co., and as he was consulted by Nichols and Benedict about the settlement and the deeding of the property in question, he derived his knowledge of the facts in that way and from no other source. He saw no deeds given or receipts pássed. In answer to previous questions, he disclaims all actual knowledge of any transactions between Nichols and either of the firms. It is very manifest that this language does not amount to proof of an admission by Spencer S. Benedict as to the consideration which he paid for the land. The witness nowhere testifies positively and directly that he conversed with Benedict, or that Benedict told him anything about the matter. For aught that appears, he may have received his information entirely from Nichols, who is mentioned in the same connection. He does not tell us who spoke or what was said, or whether the parties consulted him together or separately. ®very^n& and uncertainty. Upon this evidence we think it impossible for any court to pronounce that Spencer S. Benedict ever made a declaration upon the subject, and therefore mast conclude that the land in dispute is not within the operation of the deed.

As relates to the form of the judgment, or the power of the court to grant to the respondent the affirmative relief to which it deemed him entitled, it is clearly authorized by the statute. Sec..26, chap. 132, E. S. Its language is applicable to all issues whether joined before or after the adoption of the Code. The fact that such relief was not asked does not vary the question. The facts constituting the foundation for it are sufficiently stated, which seems to be all that is now required by law. See sections 9 and 10, chapter 125, E. S. The practice of demanding such relief in proper cases, is undoubtedly a good one, and may with propriety be continued, but the statute does not make it essential.

Judgment affirmed.