Parker v. Kane

Mr. Justice CAMPBELL delivered the opinion of the court. The.plaintiff sued in ejectment to recover certain parcels of land included in the northeast fractional quarter of section twenty-one, in township seven north, of range iwenty-two east, in the district of lands subject to sale at Green Bay, and are situated in the city of Milwaukee. The fractional quarter is subdivided into three lots. Lot number one is north of a line running east and west, that bisects the quarter section; lot number six corresponds to the southeast quarter of the quarter section; and the third lot is a tract of forty acres, and is known as the southwest quarter of the northeast quarter of the section, township, and range, above mentioned. ' , A patent issued to William E. Dunbar for this fractional quarter, in 1837, from the United States, in which the land is described as “ the lot number one, and south half of the north" *12 east quarter of section twenty-one, in township number seven north, of. range twenty-two east, of the district of lauds,” &c. In the same year, Dunbar and wife conveyed to Richard Montague ‘‘'one equal undivided fourth part of the following described parcel or tract of land, viz: Lots one (1) and six, (6,) being that part of the northeast quarter lying east of the Milwaukee river, in section number twenty-one, in township number seven (7) north, of range twenty-two east,” &e. The plaintiff, upon the trial of the cause in the District Court, connected himself with this deed (which was duly recorded) by legal conveyances. Besides the title under this deed, he exhibited a title from Dunbar and wife to an undivided fourth of the whole fraction; all of which lies east of Milwaukee river. That the plaintiff had at one time a title to an undivided half of lots one and six, was not disputed; but his claim to an undivided fourth of the southwest quarter of the fraction, under the deed of Dunbar to Montague, was a matter of controversy. •The defendant connected himself with the patent of Dunbar, by showing a sale by the administrator of his estate, under the authority of the Court of Probate of Milwaukee, of an undivided one-half of the entire fractional quarter patented to him, and a sale and conveyance by the guardian of the heirs of Dunbar of an undivided fourth part of the southwest quarter of the fraction, under a decree of the Circuit Court of Milwaukee, sitting in chancery, and a purchase by' persons under whom he claims. The defendant, to repel the claim of the plaintiff* to any interest in the land possessed by him in lots numbers one and six, produced the record of proceedings and decrees in the Circuit Court of Milwaukee county, in chancery, for the partition of those lots among the plaintiff and his co-tenants, with the latter of whom the defendant is a privy in estate. Tliia record shows that a petition was made by the co-tenants of the plaintiff for a partition of these [ots, according to their rights and interests. The plaintiff was made a party, appeared and answered, and there was a decretal order for a partition Commissioners were appointed to divide the lots, who made *13 a report to the court that appointed them. That the plaintiff made objections to the proceedings, was overruled, and after-wards appealed to the Supreme Court. That the Supreme Court revised the proceedings of the Circuit Court, and aifirmed its decree in the most important particulars, and gave some directions, which, being fulfilled to the satisfaction of the Circuit Court, a final order of confirmation, and' to vest the title in the parties to their several allotments, was made. The plaintiff objects to'these proceedings: 3. That there was no authority to make a several partition between the complainants. 2. There was no authority to make a partition, subjecting the land set off as his share to an easement. 3. There was no authority to make a partition by a plat, without the establishment of permanent, monuments. 4. There was no reference to a proper person to inquire into the situation of the premises, after the- decree settling the rights of the parties. 5. The commissioners had' no power to set apart and designate any portion of the land for sale; as they undertook to do. 6. The court did not ascertain and distinctly declare whether any part or what part should be Sold; but its language was hypothetical and uncertain. All the subsequent proceedings must fall, for want of the foundation óf, such a decree. 7. It does not appear that all the commissioners met together, in the performance of their several duties, as required by the statute. The statutes of Wisconsin provide for the partition of estates held'in common, by a bill in equity, filed in the Circuit Court of the county in which the land is, and for a sale of the premises when a partition would be prejudicial to the owners. The court upon the hearing may determine and declai’e the rights, titles, and interests, of the parties to the proceedings, and order a partition. It may appoint commissioners to execute the decree, who are required to make an ample report of their px-oceedings to the court, in which it can be confirmed cr set aside. When a partition is completed, the court may .enter a decree; and thereupon the partition is declared to be “firm and effectual foi’ever,” and “ to bind and conclude ” all the parties named therein. *14 The decrees are subject to the revising power of the Supreme Court. In reference to the objections made by-the plaintiff, it is sufficient to say that some of them were made in the courts of Wisconsin without effect, and all might have been urged, there at a proper stage in the proceedings. Kane v. Parker, 4 Wis., 128. That it sufficiently appears that the subject was within the jurisdiction of those courts, and the proper parties were before them; and this court, conformably to their established doctrine, acknowledge the validity and binding operation of these orders and decrees, and determine that this, court cannot inquire whether errors or irregularities exist in them in this collateral action. Thompson v. Tolmie, 2 Pet., 157; Grignon v. Astor, 2 How., 319; Beauregard v. New Orleans, 18 How., 497. At the time that the partition of lots numbers one and six. was sought for, a petition was filed in the same court by the same parties for a partition of the southwest quarter'of. the fractional quarter section described in Dunbar’s patent. The plaintiff had an acknowledged interest in that parcel, independently of his claim under Montague, and was made a party to that suit. ' . In his answer to the petition he refers to this claim under Montague,: and the,mesne conveyances that connect him with the deed of Dunbar to Montague. He stated,, that, it being uncertain whether that deed of Dunbar would be sustained as sufficient by the court to convey a legal title to a fourth part of that parcel, he designed to file a bill in equity, for the purpose of. having his title ascertained, and to have his conveyances reformed, if need be,, so that his claim under that deed could be established and. confirmed. In the same month he filed in the same court a bill in equity against the heirs of Dunbar and their guardian, and the purchasers under the. decrees, obtained by the administrator and guardian, for, the.sale of the parcels in the fractional quarter described in Dunbar’s patent. He charges.in this bill that Montague was equally interested with Dunbar, at the date of-his entry in the land office, in the entire fraction, and furnished the money for the purpose of *15 making it; that Dunbar gave to Montague a deed.for one-half, according to the description in the certificate of purebase from the register of the land office. That by a subsequent contract his interest was reduced to one-fourth. That his first deed not being recorded, he surrendered it to Dunbar, who destroyed it. That the deed for the fourth part was máde to fulfil the agreement for title tó a fourth of thé whole fraction; and that Dunbar represented this deed to .be sufficient, and during his life acknowledged that it was sufficient, and that Montague was a joint and equal owner with him. He avers that-these facts constitute him the owner of one-fourth of the entire fraction, either at law or in equity. He refers to the sales of a larger interest than they really owned, by the heirs of Dunbar, through their guardián, and to the pendency of the suits of partition. He prays that thé court will require the defendants in thé bill to release their title to the interest embraced in his claim, and that his conveyances may be reformed, if need be, to express his legal and equitable rights; but if the court should decide that the guardian of the children of Dunbar had conveyed a good and valid title as against him, he prayéd fór a pérsonal decree for the proceeds of his sale. He alsfe prayed that this suit might fee heard with the partition suit of thé claimants under Dunbar’s administrator and the guardian of his children, and for all general and equitable relief. . The purchasers asserted in their answers the superiority of their legal and equitable title, and pleadéd that, they were bona fide purchasers, and all, except one, also pleaded the statute of limitations. The guardian answered, that he had made the sale in good faith, under a valid decree, and under the belief that his wards were entitled to the estate. The Circuit Court, upon the pleadings and proofs, dismissed the bill of the plaintiff, and declared in the decree that the defendants had a valid title as bona fide purchasers, not affected by the registered deéd from Dunbar to Montague. From this decree the plaintiff appealed to the Supreme Court. That court affirmed the .decree of. the. Circuit Court, ■as to .all the'purchasers,: except-one. .They say the plaintiff.is *16 not entitled to relief under the first deed of Dunbar to Mon tague, which had been destroyed; for, admitting that the destruction of the deed did not disturb the title, nevertheless, in view of the statute of frauds, and the rule of evidence that •statute' established, a grantee in a deed, who had voluntarily, and without fraud or mistake, destroyed his deed, could not establish his title. One of the purchasers, who had notice of the plaintiff’s claim, and had failed to plead the statute ot limitations, was decreed to release his title to the plaintiff, and the guardian was required to account to him for the price he had received. Parker v. Kane, 4 Wis., 1. The defendant is a privy in estate with the successful litigants in this cause, and relies upon the decree as a bar. We have seen that the jurisdiction of the Circuit Court of. Milwaukee, under the statute of Wisconsin, in matters of partition, extends to the ascertainment and determination of the rights of the parties in matters of partition, and that its decree is final and effectual for their adjustment.' That court is also elothed.with power, at the suit of a person having a legal title and possession, to call any claimant before it, to quiet a disputed title. Rev. Stat. Wis., 578, sec. 20 ; 417, sec. 34. The bill seems to have been framed on the distinct and, declared purpose of obtaining from the courts of Wisconsin an authoritative declaration of the legal as well as equitable rights of these parties under their conflicting titles, with a view to the partition of the entire fractional quarter section, suits for which were then pending; and the prayer of the bill, that if the conveyance of the guardian “passed a good and valid title against the plaintiff,” that then he might be indemnified by a decree for the proceeds of the sale in the hands of the-guardian, submitted the legal as well as the equitable relations of the parties, under their respective titles, to the judgment of the court. The reversal of the decree of the Circuit Court by the Supreme Court, and their decision that the guardian should account for the proceeds of the sale in his hands, is a direct response to this prayer, and implies that the recorded deed of Dunbar to Montague did not convey a legal title to this frac *17 fcion. We question whether the voluntary dismissal of the bill, as to Martineau, the guardian, subsequently to its return in the Circuit Court, will quality this decree, or limit its effect as res judicata of the legal right. 30 Miss. R., 66; 2 Free Ch. R., 158; 9 Simon R., 411; Eng. Orders in Ch., 1845, n. 117. In Great Britain, a Chancellor might have considered this as a case in which to take the opinion of a court of law, or to stay proceedings ih the partition and cross-suits until an action of law had been tried, to determine the legal title. Rochester v. Lee, 1 McN. and G., 467; Clapp v. Bronagham, 9 Cow., 530. But such a proceeding could not be expected in a State where the powers of the courts of law and equity are exercised by the same persons. The parties to this eject-' ment and the suit' in. chancery court of -Wisconsin are the same, or are privies in estate. The same parcel of land is the subject of controversy, and the object of the suit, if not identical, is closely related. The object of the bill in chancery, as we-have seen, was to obtain from the court a decision upon the legal and equitable titles of the plaintiff, with the immediate, view to a partition. If the decision had. been made in his favor, it is true that a. change of possession-would not have taken place, as an immediate consequence, but it would have conclusively established the right of the plaintiff either iii an action of ejectment or upon a writ of right. The object of the suit of the plaintiff in chancery was to obtain a recognition of the sufficiency of his deeds, as-entitling him to the land,'or to supply "their defects, or to'afford him-indemnity, by subjecting tbe price that his adversaries had paid for the land to a tortious vendor having the legal title. The object of. the ejectment suit is to recover the land by means of the title disclosed in the deeds. A portion of the judges find in thé two suits eandem causarn petendi, and that the decrees of the Circuit and Supreme Courts of Wisconsin embraced the decision of the same questions, and are conclusive of this controversy. Bank of U. S. v. Beverly, 1 How., 135. But if the plaintiff is not concluded by the proceedings of the *18 courts of Wisconsin, the question arises, whether his legal title will support his claim to the interest in the southwest quai ter of the fraction. . . The first deed from Dunbar to Montague was destroyed before the second was made, and it never was placed upon record. ' The decree of the courts of Wisconsin shows that the purchasei’s of the guardian were bona fide purchasers without notice. That deed is therefore inoperative, under the statutes of Wisconsin in relation to the registry of deeds. Territorial Statutes of Wisconsin; 179, sec. 10; Rev. Stat. of Wis., 329, 350, secs. 24, 34, 35. Wé- agree with the Supreme Court of Wisconsin, that the recorded deed from Dunbar to Montague did not convey any. part of the fractional quarter, except that contained in lots numbers.one and six. Lot number .one is a subdivision, of the fractional quarter section, and is designated in the plat of sur-. vey, as well as in the patent. Lot number six is referred to in the pleadings and proofs as á known and recognised parcel, corresponding with an official subdivision; and, upon referring to the official surveys in the General Land Office, we find that it is, as we had supposed. it from the evidence in the record to be, noted there. . The deed of Dunbar -designates these subdivisions as the corpus of his conveyance; and, as a further description, adds, “being that part of the northeast quarter lying east of the ^Milwaukee river.” These lots lie east of the Milwaukee river, but there is within the fractional quarter a tract equally distinct, and marked, as lots numbers one and six, .and this fact has occasioned this controversy.; The description of the property conveyed as lots numbers one and six of the fractional quarter is .a complete identification of the land, having reference to the, official surveys of the United States, according to which their sales áre ■made. The more general and less definite description cannot control this; but whatever is inconsistent with it will be rejected, unless there is something in the deed, or the local situation of the property, or of the possession enjoyed, to modify the application of this rule.' It cannot be controlled by the declarations'of the parties, or by proof of the r ego tin *19 tions or agreements on which the deed was executed. Hall v. Combes, Cro. Eliz., 368; Jackson v. Moore, 6 Cow., 706; Drew v. Drew, 8 Foster, 489; 4 Cruise Dig., 292; 35 N. H. R., 121; 5 Metcalf, 15. Upon the whole case, we are of opinion there is no error in the record injurious to the plaintiff, and that the judgment ol the District Court must, be affirmed. ■' ■ Mr. Justice CLIFFORD dissented.