Johnson v. Ashland Lumber Co.

LyoN, J. There is no finding that the plaintiffs are the owners of the lands from which the logs in controversy were taken. The judgment probably went upon the grounds that the exceptions in the conveyance by Butterfield to Earley are void for uncertainty, and that Earley took title under that conveyance to the whole of the N. E. J of the N. W. J- and lot 3 of section 5, mentioned in the complaint. If Farley died seized of these lands, it is not denied that his title descended to the plaintiffs. We think there is no uncertainty or ambiguity in the description in that conveyance of the excepted parcels. It was conceded in the argument of the cause, and the government plats show, that the N. \ of the N. W. J, and lots 3 and 4 of section 5, constitute the northwest fractional quarter of that section — lot 3 being the southeast, and lot 4 the southwest fractional quarter of the quarter-section. The exception of 32 acres adjoining the town line, mortgaged to Schuyler Goff, must, in the absence of that mortgage, be presumed to be a parcel of land extending the whole length of the north side of the quarter-section (which is the only town line abutting it), of sufficient uniform width to include 32 acres; and the exception of seven acres to be taken on the east side of the fractional [331] quarter-section is an exception of a parcel of land extending along the whole east side of the quarter-section, of sufficient uniform width to include seven acres. Dolan v. Trelevan, 31 Wis., 147; Jenkins v. Sharpf, 27 Wis., 472; Walsh v. Ringer, 2 Ohio, 435; 3 Washb. on Real Property (4th ed.), 406, and cases cited. The record of a mortgage executed by Butterfield to Goff, on thirty-four acres of land in the northeast quarter of section 5, was read in evidence, and no other mortgage executed by the former to the latter was found of record. But that does not disprove the existence of the mortgage mentioned in the conveyance to Earley. It may have been executed and not recorded. Hence we are not called upon to decide the effect upon Earley’s deed of proof that no such mortgage ever existed. If such a mortgage should be produced, and found to include lands not of a uniform width along the north line of the quarter-section, the presumption above mentioned would cease, and the description in the mortgage would control; that is to say, the exceptions would cover the parcel on the town line actually mortgaged, although the same might not be of uniform width. Hence, on the record before us, the most that the plaintiffs can successfully claim is, that when the logs were taken from the land described in the complaint (which is, in fact, the east fractional half of the northwest quarter of section 5), they were the owners of only a portion of such land. The special verdict fails to find that the logs were taken from that portion of the fractional half-quarter-section owned by the plaintiffs. The verdict may be true, and yet not a tree have been cut on the plaintiffs’ land. Perhaps a general verdict for the plaintiffs would have supplied the omission, but no general verdict was returned. The omission to find that the timber was taken from the lands of the plaintiffs is necessarily fatal to the judgment. 2. A tax deed in the statutory form was read in evidence on behalf of the defendant, purporting to convey the lands described in the complaint (less seven acres) to one Smith; also a [332] conveyance of tbe same lands executed by Smith to Storman. It was also proved that the plaintiff Lueretia Johnson was then a minor, and afterwards redeemed the lands from the tax sale and deed pursuant to the statute. Laws of 1868, ch. 89; R. S., 374, sec. 1166. Storman cut the timber and sold it to the defendant after Smith conveyed to him, and before such redemption. Several questions are made on the tax deed and the effect of the redemption; but we have concluded to leave them undetermined on this appeal. By -the Cowt. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.