Where a deed for land in Wisconsin was voluntarily destroyed by
the parties without its being recorded, and adverse parties were
bona fide purchasers without notice, according to the
decision of the Supreme Court of Wisconsin, the destroyed deed was
inoperative under the statutes of Wisconsin in relation to the
registry of deeds.
A deed which conveyed
"an undivided fourth part of the following described parcel or
tract of land,
viz., lots number one and six, being that
part of the northeast quarter lying east of the Milwaukee
River"
conveys only lots one and six, and not that part of the
northeast quarter which is not included within the lots one and
six.
Where a sale was made by an administrator under the authority
and pursuant to an order of the probate court of the county where
the land laid, and the proceedings were regular except that no
guardian was appointed to represent the heirs, the Supreme Court of
Wisconsin decided that this defect was not sufficient to prevent
the title from vesting in the purchaser, and this Court adopts
their decision.
Where a decree for the partition of lands was made by a state
court having jurisdiction over the subject matter and the parties,
which decree was affirmed by the supreme court of the state, this
Court cannot inquire, in a collateral action, whether errors or
irregularities exist in the proceedings.
The plaintiff in error commenced an action of ejectment to
recover an undivided moiety of land in Milwaukee County
included
Page 63 U. S. 2
in the fractional section twenty-one, in township seven north,
of range twenty-two east. This fractional quarter contains one
hundred and twenty-nine acres, and lies east of Milwaukee River. It
is subdivided into three lots. The northern portion is called lot
number one. The southern half of the quarter is divided into the
east half of the south half of the quarter, which is also
designated as lot number six, and the southwest quarter of the
northeast fractional quarter of the section. A patent for this land
issued to William E. Dunbar, in August, 1837, by the description of
lot number one, and the south half of the northeast quarter of
section twenty-one, in township seven north, of range twenty-two
east, in the district of land subject to sale at Green Bay. It
appears from the case that Richard Montague was equally interested
with Dunbar in the entry of this parcel of land at the land office,
and in the spring of 1836, Dunbar executed to him a deed for the
undivided half of the fractional quarter, which he did not place on
the records of the county. Subsequently, under a contract between
Dunbar and Montague, the interest of the latter was reduced to
one-fourth of the fractional quarter, and thereupon Montague
surrendered his first deed, and received one in December, 1837, for
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 (22) east of the fourth principal meridian, in
Milwaukee County. This undivided interest was claimed through mesne
conveyances by the plaintiff in this suit, and it became a question
whether, upon a construction of this deed, a fourth part of the
entire fractional quarter passed, or only a fourth part of the
parcels, lots one and six.
The plaintiff, in addition to the right of Montague, also
acquired a title to a fourth part of the fractional quarter from
assigns of Dunbar, so that his title to an undivided moiety of lots
one and six, and to an undivided fourth part of the remainder of
the fractional quarter, being the southwest quarter of the
fraction, was not disputed. After the death of Dunbar,
Page 63 U. S. 3
the undivided half of the entire fraction, and an additional
fourth of the southwest quarter of the traction, vested in persons
with whom the defendant was connected. The only controversy at this
stage of the transaction was for the one-fourth part of the
southwest quarter of the section, arising out of the ambiguous
description in the deed of Dunbar to Montague, and the sale by the
guardian of the children of Dunbar of the fourth part which was
claimed by Montague and his assigns in that portion of the
fraction. In 1850, the claimants of three-eighths of the parcels
one and six filed a bill in the Circuit Court of Milwaukee County
for a partition against the known and unknown owners of the
remaining interests, the plaintiff in this suit being made a party.
Publication was made of the proceeding, and the owners appeared to
the bill. The plaintiff, Parker, answered, claiming to have
one-half. In June, 1851, an order of the court describes the
interest of the respective parties, and that of the plaintiff
Parker is recognized. On the same day, a report of the clerk that
the greater part of the land was so situated as to be susceptible
of division, but that the water power on the Milwaukee River could
not be divided, and that ten acres, or whatever was necessary to
the water power, should be sold was submitted to the court. This
report was made pursuant to an order of the court previously made.
Three commissioners were appointed to make the partition. The
proceedings were continued until April, 1854, when the
commissioners made their report. In this report, thirty-seven and
four hundred and ninety-seven thousandths acres were allotted by
metes and bounds to the plaintiff,
"the same being, quality and quantity relatively considered, one
full equal one-half part of the said lands, except the portion set
apart to be sold in connection of the water power on and
appurtenant to the land."
There were two and thirty-six hundredths acres in this parcel.
This report was confirmed in April, 1854, and the several parcels
vested in the several allottees, to be had, held, and enjoyed by
them and their heirs. In May, 1854, the plaintiff, upon affidavits
filed, moved to set aside the order of confirmation:
"1. Because the commissioners appointed herein have not
Page 63 U. S. 4
designated the several shares and portions of the different
parties, by posts, stones, or other permanent monument."
"2. Because their report does not describe the lands divided and
the shares allotted with sufficient certainty."
"3. Because said commissioners have not divided the real estate
in their report mentioned, allotting to the respective parties
herein the several portions, quality and quantity respectively
considered, according to the respective rights and interest of the
parties, as adjudged and decreed by this Court, but that said
division is manifestly unfair, and against the rights of the
defendant."
"4. Because, by said division, this defendant does not receive,
either in quantity, quality, or value, one-half of the lands
divided by said commissioners, but receives less than one-half of
said land."
The adverse parties also filed affidavits. The surveyor was
required to remove the first objection by placing the monuments
prescribed by the statute; and in January, 1855, the report was
again ratified and confirmed, and the partition decreed to be
valid. From this decree an appeal was taken to the supreme court,
and that court affirmed the decree and remanded the cause with
directions to establish posts and monuments according to the
partition made.
The parties who filed the bill for partition of the lots one and
six, filed another bill for the partition of the southwest quarter
of the fractional quarter section. To this bill, the plaintiff,
Parker, was also made a party, and filed an answer. This suit has
not been brought to a conclusion. But about the time of filing his
answers in the two cases, the plaintiff himself filed a bill
disclosing the circumstances in which Montague had become
interested in the entire fractional quarter; the surrender of his
first deed, and the execution of the second; the ambiguous
description of the property in that second deed, and the justice of
his claim to an interest in the fourth part of the entire quarter
under it. He insisted that he had a good title, either in law or in
equity, to this fourth part. To this bill the heirs and
representatives of Dunbar were parties, as well as the purchasers
of the three-fourths part of that parcel of the quarter
section.
Page 63 U. S. 5
The prayer of the bill was that the heirs and purchasers of the
estate of the heirs might be compelled to convey an undivided
fourth of that quarter to him, and, if necessary, that the deed of
Dunbar to Montague and the mesne conveyances might be corrected
according to the right of the parties. But in case that the
claimants had a good title, then that he might have a decree for
the money paid by them to the representatives of Dunbar. He prayed
that the partition suit be connected with his suit, and that they
might be heard together.
The several defendants answered the bill, and upon a hearing in
the circuit court it was dismissed. In the Supreme Court of
Wisconsin, an appeal from the claim of the plaintiff to relief
against one of the purchasers who had failed to plead the statute
of limitations, and had notice, was recognized; also his claim to
the money paid to the heirs of Dunbar for the undivided fourth of
the land in dispute. The decree of the circuit court was affirmed
as to those who had pleaded the
bona fides of their
purchase and the act of limitations.
The suit in the district court of the United States proceeds
upon the assumption that the plaintiff is not concluded by either
of these decrees. That the partition made of lots one and six was
illegal, because the formalities prescribed by the statute were not
complied with. That the purchasers at the sale of the estate of the
minor heirs of Dunbar acquired no title from that sale, because the
heirs were not represented in the proceedings by a guardian, and
were minors. But if they acquired any title, they took it subject
to the rights and claims of the plaintiff, and those under whom he
claims, whether such purchasers at the guardian's sale had notice
or not. The plaintiff contended that upon a fair construction of
the lost deed to Montague, an interest equal to one-fourth of the
fraction passed; but if that were not the case, that he was
entitled to hold under the deed executed by Dunbar, in 1836, to
Montague. That the destruction of this deed did not defeat the
title of Montague under it or revest the title in Dunbar.
Appropriate prayers for instructions were made and refused in the
district court, and exceptions were duly taken. The jury were
instructed that the plaintiff, Parker, was a party to
Page 63 U. S. 6
the partition suit in Milwaukee County, and that the decree in
that suit was conclusive, and that the decree in the case of
Parker v. Kane and others, in equity, bound this suit to
the extent of that decree.
The jury returned a verdict for the defendant.
Page 63 U. S. 11
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 twenty-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
northeast
Page 63 U. S. 12
quarter of section twenty-one, in township number seven north,
of range twenty-two east, of the district of lands," &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,"
&c.
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. This record shows that a petition
was made by the co-tenants of the plaintiff for a partition of
these lots, 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
Page 63 U. S. 13
a report to the court that appointed them. That the plaintiff
made objections to the proceedings, was overruled, and afterwards
appealed to the supreme court. That the supreme court revised the
proceedings of the circuit court, and affirmed 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:
1. 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 of 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 declare 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 proceedings to the court, in which it
can be confirmed or set aside. When a partition is completed, the
court may enter a decree, and thereupon the partition is declared
to be "firm and effectual forever," and "to bind and conclude" all
the parties named therein.
Page 63 U. S. 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.
123.
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
Page 63 U. S. 15
making it; that Dunbar gave to Montague a deed for one-half,
according to the description in the certificate of purchase 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 made to fulfill the agreement for
title to a fourth of the 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 guardian, and to the pendency of the suits
of partition. He prays that the court will require the defendants
in the 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 prayed for a personal
decree for the proceeds of his sale. He also prayed that this suit
might be heard with the partition suit of the 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 pleaded 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 deed 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.
Page 63 U. S. 16
not entitled to relief under the first deed of Dunbar to
Montague, 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 of 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 clothed 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. 573, 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 fraction.
Page 63 U. S. 17
We question whether the voluntary dismissal of the bill, as to
Martineau, the guardian, subsequently to its return in the circuit
court, will qualify this decree or limit its effect as
res
judicata of the legal right. 30 Miss. 66; 2 Free Ch. 158; 9
Simon 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 in 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 ejectment 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 in 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 the 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 the two suits
eandem causam 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 United States v.
Beverly, 1 How. 135. But if the plaintiff is not
concluded by the proceedings of the
Page 63 U. S. 18
courts of Wisconsin, the question arises, whether his legal
title will support his claim to the interest in the southwest
quarter of the fraction.
The first deed from Dunbar to Montague was destroyed before the
second was made, and in never was placed upon record. The decree of
the courts of Wisconsin shows that the purchasers 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.
We 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 survey, as well as in the
patent. Lot number six is referred to in the pleadings and proofs
as a known and recognized 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 are 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 negotiations
Page 63 U. S. 19
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.
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 of the
district court must be affirmed.
MR. JUSTICE CLIFFORD dissented.
