Riha v. Pelnar

WiNslow, J. The paper title to the half acre in dispute was admittedly in the defendant under the deed of "Wenzel Shimmel to Simon Peinar, of date October 13, 1859. It is equally clear that the actual possession of the premises has. been in the plaintiff and his grantors since on and prior to the execution of the Peinar deed.' The circuit court found that this possession was not adverse, but was in subordination to the true title, and consequently that the defendant committed no trespass in entering upon the premises. This question of the nature of the plaintiff’s possession, whether adverse or not, is the vital and controlling question in the case. If the circuit court was right in its conclusion that the plaintiff’s possession was not adverse, then the judgment was plainly right, unless prejudicial errors in rulings upon evidence occurred on the trial. The contentions made by appellant will be noticed in their order. 1. Appellant claims that it was error to admit in evidence the defendant’s title deeds, because defendant had not shown seisin or possession of the premises within twenty years before the committing of the alleged trespass. B. S. sec. 4208. It is true that neither the defendant nor his grantor had actual possession of the premises, but having proved his legal title he is presumed, under B. S. sec. 4210, to have been possessed thereof within the time re [413] quired by law, and the occupancy of other persons is ■deemed to be in subordination to the legal title, unless it was adverse. Allen v. Allen, 58 Wis. 202. That is, the plaintiff’s possession was in legal effect possession by defendant so long as it was not adverse. The court below decided — rightly, as we shall see — that plaintiff’s possession never became adverse, therefore this objection is not well taken. 2. The appellant offered to prove upon the trial, by Wenzel Shimmel, that when he signed the deed of the premises in suit to Simon Peinar he could not read the English language, and that he did not know that the deed described the premises in controversy, but supposed that it conveyed a strip of land one rod wide along the north side •of the eighty acres, and that he intended to convey such strip. It was not claimed that the mistake was mutual, nor that Peinar knew of such mistake, nor that there was any fraud; in fact it was admitted by plaintiff that he could not prove what Peinar thought or did not think, nor what was said. This evidence was rightly excluded. The deed was duly executed in proper legal form, and was not ambiguous or uncertain in any respect. It conveyed a half acre of land in a square form in the northwest corner of the eighty-acre tract. Dolan v. Trelevan, 31 Wis. 147. Such testimony would contradict the words of the grant, not explain its meaning. Lego v. Medley, 79 Wis. 211. The evidence offered would plainly not be sufficient to impeach or set aside the deed, because it was not claimed that there was any mutual mistake, or that the grantee knew of any mistake or different intention by the grantor from that expressed in the deed, or practiced any fraud, imposition, or concealment upon the grantor in any respect. So far as the evidence offered tended to prove anything, it was simply a concealed intention in the grantor’s mind, not known to the grantee, and inconsistent with the expressed agreement [414] of the parties. Such a mistake will not relieve a party from a contract. Kerr, Fraud & M. 409. 8. The plaintiff claimed title by adverse possession, both under the ten-year and twenty-year sections of the statute, lie offered to show that after the execution of the deed of October 13, 1859, by Shimmel to Peinar, Shimmel moved back his fence one rod along the north line of his land, and gave possession of this strip to Peinar. lie claims that this evidence was proper as tending to show that the plaintiff’s possession of the half acre in the corner was adverse. This may be conceded, but still the evidence was properly excluded, by reason of facts occurring on the trial, now to be stated. During the course of the trial, and prior to this offer, it was admitted by both parties, and the admission was taken down by the reporter, that the fence was built along the north line of the eighty-acre tract in 1858, and remained in the old place, being repaired from time to time, until supplanted by a wire fence two years before the trial. This solemn admission had not been withdrawn when the testimony was offered. Later in the case the plaintiff asked to withdraw the admission that the fence was built in 1858, and the court allowed him to call Shim-mel to testify that it was built about twenty-five years ago; but that part of the admission to the effect that the fence remained in the old place until two years ago, was never withdrawn, nor offered to be withdrawn, and still remains a verity in the case. 4. After the case was closed, the jury was excused by agreement of counsel, and the case submitted to the court for decision. At this time, on plaintiff’s application, further testimony was taken on the subject of the time when the north fence was built. The plaintiff introduced one witness on this subject, and the defendant one witness in addition to himself, and rested a second time. The plaintiff thereupon proposed to read the deposition of defendant [415] taken before trial under sec. 4096, R. S., claiming that it contradicted some of his evidence given in court. An objection to thus reopening the case was sustained, and we think very properly. The matter of reopening the case for further proof rested in the sound discretion of the circuit court. It was not a matter of strict right, and the court seems to have allowed plaintiff much latitude in the matter, — -fully as much as could be reasonably asked or allowed. 5. The court found that the plaintiff’s possession of the premises was in subordination to the true title, and consequently not adverse. In thus holding the court undoubtedly followed the case of Schwallback v. C., M. & St. P. R. Co. 69 Wis. 292. Following the rule in the Sohwallbaclt, Gase, it must be held that after Shimmel’s conveyance to Peinar he was estopped from claiming that his possession was adverse to his grantee. His possession and that of his grantees must be “ deemed to have been in subordination to the legal title.” The proof of adverse possession in this case was no stronger than that in the SchwallbacJt Gase, and the decision in that case must govern here. See, also, on this point, McCormick v. Herndon, post, p. 449. Some contention was made as to the finding df fact made by the circuit court as to the time when the north fence was built, but an examination of the case shows that the finding was justified by the evidence. No further points require attention. By the Court.— Judgment affirmed.