Parker v. Kane,
63 U.S. 1 (1859)

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U.S. Supreme Court

Parker v. Kane, 63 U.S. 22 How. 1 1 (1859)

Parker v. Kane

63 U.S. (22 How.) 1


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

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