Eaton v. Tallmadge , 24 Wis. 217 ( 1869 )

Paine, J.

The nonsuit as to the defendant TaTlmadge seems to have been properly granted. It.is true that, if it had appeared that no one was in the actual possession of the lands, an action might have been sustained against TaTlmadge, on his “claiming title,” as sworn to by the plaintiff. Sec. 3, chap. 141, R. S.; Knox v. Cleveland, 13 Wis. 250; Bangor v. Empie, 5 Hill, 48. But it had already appeared, from the plaintiff’s evidence, that Pomeroy was in the actual possession of the land. In such case, the action must be against him, and not against one merely claiming title and out of possession. Here there was no proof that TaTlmadge was, or ever had been, in possession.

The defendant then introduced evidence tending to show title in TaTlmadge to the north half of the land in question, derived, through several successive conveyances, from the plaintiff himself. That TaTlmadge had this title, the plaintiff does not seem to contest.

The defendant then offered evidence tending to prove title to an undivided half in one J. F. Meade. Among other conveyances thus offered, as stated in the bill of exceptions, was “ a certified copy of a deed from Hathaway to H. R. Schoolcraft, etc.”

The bill, without setting forth any thing further in regard to this copy, proceeds as follows: “Plaintiff’s objection, that it is only a certified copy of the record of a certified copy, overruled, and plaintiff excepts.” This is not sufficient to present the question sought to be raised. The copy offered is not set out. There is no statement that it was only a copy of a certified copy. The fact that the plaintiff’s objection npon that ground was overruled, does not show it. It may have been overruled because not true in fact.

The same remark applies to plaintiff’s subsequent objection to a certified copy of a deed, because the certificate of the clerk, certifying to the authority of the, officer before whom it was acknowledged in New York, had no seal. It may have been overruled because the certificate had a seal. There is certainly nothing in the bill to show that it had not.

After tracing title to an undivided half to J. P. Meade, the defendant then offered the testimony of Hudd, to show that Meade had been dead about eighteen years, and that Edward L. Meade, then twenty-three years old, was his only son and heir at law. His knowledge upon these subjects was that which usually exists as to the fact of marriage, and the age of children, among those acquainted with families, but who were not actually present at the marriage of the parents .or the birth of the children. General repute, the conduct of the members of the family toward each other, and the statements of relatives, constitute the groundwork of such knowledge. That such evidence is proper upon such questions, see 1 Greenleaf ’ s Ev. §§ 103, 104.

The only remaining questions necessary to be noticed arise upon the instructions. The plaintiff claimed title through tax deeds. The defendant sought to avoid that title by proving a redemption, by Edward L. Meade, of the undivided half inherited by him, within a year after he came of age. The general instruction, that he had the right so to redeem, was clearly correct. The judge was also right in excluding from the amount to be paid on redemption, one-half of the costs of recording the tax deed. The other instructions relate to the effect of the plaintiff’s conveyance of the north half specifically, to estop him from claiming any further interest in the south half, if the party owning the other undivided half saw fit to acquiesce, and accept the south half for himself. In this case, the heir of Meade, having redeemed his undivided half, conveyed specifically the south half, the title to which had also become vested in Tallmadge. The instructions upon this subject were also correct. Where there are two tenants in common, each owning an undivided half of land, neither can make a partition that will be binding upon the other, by assuming to convey either half specifically. But if one does so convey, we think the other would be at liberty to acquiesce, and to accept the remaining half. And if he should do so,. by conveying that specifically, the two conveyances would operate as a complete and binding partition.

This was the substance of the instruction upon this point.

By the Court. —The judgment is affirmed, with costs.