Chloupek v. Perotka

PihNey, J. 1. The plaintiff’s claim of title is under and in privity with that of his grantor and ancestor, Anton Chloupek; and if the execution and acceptance of a substitute deed, December 4,1861, operated to estop Anton Chlou-pek and those claiming under him from asserting title under the deed of November 10, 1855, from Krajnik and wife, to more of the premises therein described than is included in the substitute deed, then it is clear that the plaintiff failed to show title to the locus in quo, and judgment was rightly given, as will be seen, for the defendant. Undoubtedly, the first deed from Krajnik and wife to Anton Chloupek operated to convey to him in fee all the lands described in it, and the legal title, it may be' admitted, remained in him until it descended on his death to his heirs at law; but he and they may be estopped from asserting title to any of it not embraced in the substitute deed, as against Krajnik and his subsequent grantees, immediate and remote. The grantee in a deed poll, by accepting it, becomes bound by its terms as [556] completely and absolutely as the grantor, and it will operate as an estoppel against him by reason of its acceptance, as fully as against bis grantor. Lowber v. Connit, 36 Wis. 176; Hutchinson v. C. & N. W. R. Co. 37 Wis. 582; Hubbard v. Marshall, 50 Wis. 327; Orthwein v. Thomas, 127 Ill. 554; Bowman v. Griffith, 35 Neb. 361. The case of Hutchinson v. C. & N. W. R. Co. 41 Wis. 541, shows that there is no-valid reason why a corrected conveyance from the grantor “ should not have the same effect as though the correction had been made by the judgment of a court of equity instead of the voluntary act of the parties interested.” In Emeric v. Alvarado, 64 Cal. 529, 587, where the grantees in deeds of specific lands by metes and bounds accepted a conveyance of an undivided interest in a tract of land, which in terms declared that it was in lieu of the previous deeds conveying such specific portions of the same land, it was held that the grantees were estopped from claiming under the-previous deeds, upon the ground that they could not hold under the lieu deed and against it too; - that they could not blow hot and cold or assume inconsistent positions; and that whether they were divested of whatever title was conveyed by the original deeds without a reconveyance was immaterial. This is according to the maxim, “ AZlegans contraria non est cmdiendus.” Broom, Leg. Max. 129. Anton Chlou-pek affirmed the transaction as stated in the second or substitute deed in the most solemn manner, by conveying to-the plaintiff, his son, the land therein described according to the express description of that deed. The latter obtained no title except through this deed, which did not include the locus vn quo, unless he obtained it as heir at law and by the quitclaim deed from the other heirs of Anton Chloupek,. dated October 28, 1892; but the heirs of Anton Chloupek came into the position or condition of their ancestor, and were concluded by the same estoppel that bound him. The second or substitute deed appears to have been intended as557 a revision or correction of the former one, and to have been designed to embrace in it all the lands Krajnik intended to •convey. It is immaterial that the legal title to the premises in question may have descended to the heirs of Anton Chlou-pek, if the second deed operates by way of estoppel, as we think it does, to prevent them from asserting title to any part of the premises described in the deed of November 10, 1855, not included in the second deed of December 4, 1861. 2. The plaintiff, in making out his case, gave evidence to show the possession and use of the strip of land constituting the locus in quo by Anton Chloupek and by those claiming under him, insisting upon his right to do so on the ground that he had alleged both title and possession as a basis of recovery, and the defendant insisted that evidence to prove title by adverse user or prescription was inadmissible. The plaintiff’s counsel then stated: “We are not proving title. Ye are proving possession — that is all — under a grant. We found our claim on a grant.” The court suggested that possession would be presumed to follow the legal title until the contrary was shown; whereupon the plaintiff’s counsel stated he would rest, and bring in that testimony in rebuttal. The defendant did not go into the question of possession at all, and the case was closed without other proof on that subject. The evidence produced on the part of the plaintiff tended to show that the strip of land in dispute was used as a roadway, and that the plaintiff and his father had used .and claimed it as such; that they claimed a right of way over it. The first request of the plaintiff was not that the court s'hould find that the plaintiff or his ancestor had ever adversely held the premises,'but that they had had the actual, sole, exclusive, and notorious possession thereof. If such possession was not adverse it would not establish such a right as would entitle him to recover in this action. The second request was to find that the land had been adversely field, occupied, and used as a road to obtain access to other [558] lands of tbe plaintiff. We think that these requests were properly refused, and that the plaintiff was rightly regarded as concluded by his disclaimer, and that he could not maintain trespass for injury to or disturbance in • the enjoyment of an easement over the premises in question, if he had such. Washb. Easem. (4th ed.), 738; Baer v. Martin, 8 Blackf. 317; Smith v. Wiggin, 48 N. H. 105. Nor is the case of Joyce v. Conlin, 72 Wis. 607, in conflict with this conclusion. In that case it was held only that one sued in trespass for removing obstructions from a right of way could defend on the ground that they interfered with his enjoyment of the same. Judgment was rightly given for the defendant. By the Oov/ri.— The judgment of the circuit court is affirmed.