1. Parol evidence, not inconsistent with a written instrument,
is admissible to apply such instrument to its subject.
2. Where a map or plat is referred to in a deed for the purpose
of fixing a boundary, the effect is the same as if it were copied
into the deed.
3. This is a familiar rule of construction in all those cases
wherein no other description is given in the title deeds than the
number of the lot on the surveyor's plan of a township or other
large tract of land.
4. Where a plat is referred to in a deed simply for the purpose
of fixing boundary, the fact that such plat was illegally made does
not in any wise effect the validity of the deed.
5. The statute of Wisconsin of 1849 permits a grantor out of
possession to make a valid conveyance of lands adversely held by
another.
Page 67 U. S. 500
6. In all cases where there is adverse possession, by virtue of
a paramount title, of lands thus conveyed, such possession is
regarded as eviction, and involves a breach of the covenant of
warranty.
7. Where the paramount title is in the warrantor and the adverse
possession is tortious, it is no eviction either actual or
constructive, and no action will lie upon the covenant.
8. A purchaser in the undisturbed possession of the land will
not be relieved against the payment of the purchase money on the
mere ground of defect of title, there being no fraud or
misrepresentation.
9. In such a case, he must seek his remedy at law on the
covenants in the deed.
10. If there is no fraud and no covenants to secure the title,
he is without remedy, as the vendor selling in good faith is not
responsible for the goodness of his title beyond the extent of his
covenants in the deed.
11. Relief will not be afforded upon the ground of fraud unless
it be made a distinct allegation in the bill, so that it may be put
in issue by the pleadings.
12. Where a party designing to foreclose a mortgage notified the
mortgagor before filing the bill that he elected to consider the
entire amount of the mortgage debt as due, he was entitled to a
decree for the full amount although, according to the terms of the
bond, one of the installments was not due when the bill was
filed.
13. The equity jurisdiction of the courts of the United States
is derived from the Constitution and laws of the United States, and
their power and rules of decision are the same in all the
states.
14. Rules of decision established by the Supreme Court for its
own government and that of subordinate courts are unaffected by
state legislation.
15. Without the authority of a rule of the Supreme Court, a
district court of the United States has no authority to direct a
mortgagor to pay the balance of debt which may remain unsatisfied
after the sale of the mortgaged premises.
Page 67 U. S. 501
MR. JUSTICE SWAYNE.
A careful examination of the facts disclosed in the record is
necessary to enable us to arrive at a proper solution of the
questions presented for our determination.
Lee sold, on the 1st day of October, 1855, he and his wife, by
deed duly executed, conveyed to Noonan certain real estate therein
described, as follows:
"One equal undivided half part or share of that certain tract of
land bounded and described as follows,
viz.:"
"Beginning in the center of the Milwaukee River, on the center
of the road represented on the recorded plat of the Village of
Mechanicsville as running east and west between blocks five 5 and
six 6 in said Village of Mechanicsville; running thence easterly in
the center of said street to the center of a street running north
and south between blocks three 3 and 5 in Mechanicsville aforesaid;
thence southerly in the center of the last mentioned street to the
center of a street running east and west between blocks three 3 and
four 4 in said Village of Mechanicsville; thence easterly in the
center of said last mentioned street to a point that would be
intersected by a north and south line through the middle of block
three 3 in Mechanicsville aforesaid; thence southerly on the line
bounding the west ends of lots one 1, two 2, three 3, and four 4 in
block four 4 in Mechanicsville aforesaid, to south line of said lot
four 4 in block four 4 aforesaid; thence easterly on the south line
of lot four 4 in block four 4 to the west line of a lot of land
containing about one-half 1/2 an acre, represented on said plat of
Mechanicsville as being nearly in a square form in the southeast
corner of the town plat of Mechanicsville aforesaid; thence
southerly on the west line of said last-described tract of land to
the south line of
Page 67 U. S. 502
the town plat of Mechanicsville; thence easterly on said last
mentioned line to the east line of fractional lot two 2 in section
four 4, in township seven 7, north of range twenty-two 22 east;
thence south to the south line of said fractional lot two 2; thence
westerly on the south line of said fractional lot two 2 to the
center of the Milwaukee River; thence northerly in the center of
the Milwaukee River as it winds and turns to the place of
beginning. Also the privilege of damming and flowing the Milwaukee
River on said fractional lot two 2, as high as said river would be
raised by maintaining a dam at least nine feet high, where a
certain dam was located across said river, near the south line of
fractional lot two 2, in the year 1837, as described in deed from
Daniel Bigelow and Amasa Bigelow to Herman V. Prentice, recorded in
Volume 'C' of deeds, on page 329, as to flow water."
The deed contains a covenant of general warranty.
Upon the same day, Noonan executed to Lee a mortgage upon the
same premises, conditioned to secure the payment of $4,000 in four
equal annual installments, with interest at the rate of 7 percent
per annum, payable annually, according to the condition of a bond
of the same date executed by Noonan to Lee, and also to secure the
payment by Noonan of all taxes upon the mortgaged premises. It was
further provided that upon any default by Noonan in respect of the
due payment of principal, interest, or taxes, the entire principal
of the mortgage debt should, at the option of Lee, thereupon be
deemed to have become due and should, with the interest thereon, be
collectable.
At the time of the execution of the bond, Lee made and signed
the following endorsement upon it:
"I agree, if my title fails to the property for the
consideration of which this bond is given, except as against the
United States, for the portion of the river beyond the meandered
line, that I will not enforce this bond, and if any encumbrance
shall be found, that the amount of the same shall be deducted from
the moneys to fall due on this bond."
On the 4th of March, 1859, Lee filed his bill setting forth that
Noonan had paid nothing either of principal of interest of the
Page 67 U. S. 503
mortgage debt; that he had notified Noonan that he claimed the
entire debt to be due, and praying for a sale of the mortgaged
premises, the payment of the mortgage debt, and for general
relief.
The decree finds the amount due Lee to be $5,267.20; directs the
sale of the mortgage premises, the payment of the mortgage debt,
and the bringing of the surplus moneys, if there were any, into
court, and then provides that if the moneys arising from the sale
were insufficient to pay the debt, interest and costs, that the
Marshal in his report of the sale should specify the amount of the
deficiency, that Noonan should pay it with interest,
"and that
the complainant may have execution therefor."
From this decree Noonan appealed to this Court
Several objections are made here to the decree:
I. It is said the deed is void because it refers for a part of
the boundaries to the recorded plat of the Town of
Mechanicsville.
The law of Wisconsin revision of 1849 requires that a town plat
shall give "the names, width, courses, boundary, and extent," of
all streets and alleys; that it shall be certified by the surveyor,
acknowledged before an officer authorized to take the
acknowledgment of deeds, and that it shall then, with the
certificate of acknowledgment, be recorded.
The 9th section of the act provides that if any person "shall
dispose of, offer for sale or lease" any lot or part of a lot
before these requirements are complied with, he "shall forfeit and
pay the sum of $25 for each and every lot or part of a lot sold or
disposed of, leased or offered for sale."
This plat was acknowledged on the 15th of March, 1836, and
recorded on the 15th of September, 1855. It does not give the
names, courses, boundary or length of the streets, and it is not
certified by the Surveyor. The certificate of acknowledgment
represents the plat as laid out on the "southeast part of the S.E.
quarter of section No. 4 in T. No. 7, in R. No. 22 E., on the east
side of the Milwaukee River." It was in fact laid out on fractional
lot 2, of the section named. The southeast quarter is upon the
other side of the section and does not approach the river. Lot 2
bounds upon the river. A large lot delineated on
Page 67 U. S. 504
the plat bounding upon the river is marked "reserved for
hydraulic purposes." An island opposite to it is laid down upon the
plat. Fractional lot 2, which is twice referred to in the
boundaries as given in the deed, bounds upon the river. Parol
evidence, not inconsistent with a written instrument, is admissible
to apply such instrument to its subject. The designation of the
"southeast quarter" in the certificate of acknowledgment was a
clerical mistake. The maxim
"falso demonstratio non nocet"
applies. The proof in the case shows clearly where the plat was in
fact located. As regards the statute, the plat was fatally
defective, and afforded no warrant to the recording officer for
putting it on record. Nevertheless, its being there was a fact, and
whether there or elsewhere, the reference to it in a deed for the
purpose of fixing a boundary is sufficient. "That is certain which
can be rendered certain." Where a map or plat is thus referred to,
the effect is the same as if it were copied into the deed.
"This is a familiar rule of construction in all those cases
wherein no other description is given in the title deeds than the
number of the lot on the surveyor's plan of a township or other
large tract of land."
Davis v. Rainesford, 17 Mass. 211;
McIver's Lessee v.
Walker, 4 Wheat. 445.
II. It is claimed that the deed is void because it was executed
to convey lots designated upon a town plat not made in conformity
to law, and which it was therefore penal to sell.
No lots are mentioned. The plat is referred to only for the
purpose of boundary. The land with the boundaries is conveyed
without reference to any subdivision. The fact that it had been
illegally laid out and platted into lots and streets does not in
any wise affect the deed.
III. It is objected that the deed from Prentiss to Church and
Clark of August 4, 1847, in Lee's chain of title, and the deed from
Church and Clark to Lee of July 7, 1848, were void because they
were made by grantors out of possession, when the premises were
held adversely by other parties under deeds apparently valid.
At the dates of those deeds the Coltons were in possession under
a deed of the 22d of June, 1847, from James H. Rogers.
Page 67 U. S. 505
The only part of the description in that deed referring to the
premises in controversy is as follows:
"Twenty-two acres of land more or less undivided, in fractional
lot number two of section four in township seven, range twenty-two,
together with one-half of the water power belonging to said
fractional lot two, and also all the right, title and interest of
the said parties of the first part in and to said lot two."
A title to twenty-two acres undivided would have given the
grantee no right to take exclusive possession of the mortgage
premises. So far as the record discloses the facts, it appears that
Rogers claimed entirely under sales for taxes. It will presently
appear that they gave him no title, real or apparent, which he
could convey to another.
IV. The tax deeds.
It is not denied that at the time Lee conveyed to Noonan, his
chain of title was perfect unless it was broken by one or more of
the facts claimed by Noonan to have produced that effect. In this
connection, the tax deeds found in the record are relied upon. The
consist of Exhibits C, D, E, F, G, H, I, J, and the deed to Orton
of the 25th of April, 1852.
1. The deed last named does not appear to have been recorded.
Possession under it can therefore have no effect upon the rights of
Lee. The description in the deed does not cover the premises in
controversy. That part of the description relied upon is in these
words:
"Part of the S.E. quarter section fourth, T. 7, R. 22, bounded
north by Demster, east by Jones and Bare, west by river, and south
by Allerding, nineteen acres."
The land in controversy is not in the southeast quarter of the
section, and there is nothing in the case which shows what river is
referred to, or where the lands of Demster and the other parties
named are situated.
2. Exhibit F, I, and J, are duplicates respectively of Exhibits
H, C, and E, and may be laid out of view.
3. Exhibits C, D, and G, embrace none of the land in
controversy. This leaves only Exhibits E and H to be examined.
4. Exhibit "E."
Page 67 U. S. 506
This is a deed to James H. Rogers. It bears date on the 17th of
February, 1846. It recites a sale to Rogers on the 14th day of
December, 1840, for the taxes of that year. The description
embraces lots one and six in block five of the plat. This block is
within the limits of the mortgaged premises. At the time of the
sale and for several years previous, Rogers had been in possession
of the mortgaged premises under the deed of the 27th of July, 1837,
from Prentiss, to whom he had given back a mortgage of the same
date to secure the purchase money. Prentiss had proceeded to
foreclose the mortgage, and the premises were sold under a decree
rendered on the 26th of June, 1840. Prentiss became the purchaser,
and on the 5th of October, 1840, received the master's deed for the
premises.
Rogers being in possession, the Statutes of Wisconsin required
him to pay the taxes and gave him an action to recover the money
back, if he were entitled to it, from the party to whose benefit
the payment enured. Revised Statutes of 1839, sec. 14, 47
His relation to the property, and to his vendor and mortgagee
also, rendered it his duty to make such payment. Neither he nor
anyone claiming under him can avail himself of a title thus
acquired, as against Prentiss and those claiming under him.
Douglass v. Dangerfield, 10 O.Rep. 152;
Creps v.
Baird, 3 O.St. 377.
5. Exhibit "H."
This deed was also to James H. Rogers, and bears date on the 23d
of December, 1845. It recites that the sale was made to Rogers on
the 9th of December, 1839, for the taxes of that year.
It embraces lots 1, 2, 3, 4, 5, and 6, in block 5, as delineated
on the plat. During all of the year 1839, Rogers was in possession
as the vendee of Prentiss, and the same remarks apply as to Exhibit
"E."
Underlying these deeds is another objection.
We have already referred to the nonconformity of the town plat
to the requirements of the statute, and the fact that it was penal
to sell or lease any lot, as such, which it represented. All the
witnesses, including Orton, who claimed to be in possession
Page 67 U. S. 507
of the whole of fractional lot 2, speak of it as a "pretended
plat." Orton says:
"I do not know of such a village as Mechanicsville in fact,
though I have heard of it. I do not know where the plat of
Mechanicsville is located, though I know where they claim it is
located. I know the land described in the mortgage in the bill of
complaint from its boundaries."
It does not appear in the case that any street was ever
improved, that any lot was ever enclosed, or that any house was
ever built with reference to the boundaries of any street or lot.
It comes out incidentally in the evidence touching possession that
there is but one house on the plat, and that it is in a ruinous
condition and unoccupied. Nothing is proved
in pais
recognizing the existence of the plat.
Under these circumstances, it may well be doubted whether the
sales of lots for taxes were not illegal and void.
Wheeler v.
Russell, 17 Mass., 258;
Strong v. Darling, 9 O.Rep.
201.
We have not found it necessary to decide that question, and we
express no opinion upon the subject.
As the facts are disclosed in the record, we find no defect in
the title of Lee. We find that Noonan's title has not "failed," and
no encumbrance upon the property is shown. There has been,
therefore, no breach of the agreement endorsed upon the bond, nor
has there been any breach of the covenant of general warranty in
Lee's deed to Noonan. The deed contains no other covenant. The
Statute of Wisconsin of 1849 permits a grantor out of possession to
make a valid conveyance of lands adversely held by another. In all
cases where there is adverse possession, by virtue of a paramount
title, of lands thus conveyed, such possession is regarded as
eviction, and involves a breach of the covenant of warranty. Where,
as in this case, the paramount title is in the warrantor and the
adverse possession tortious, it is no eviction either actual or
constructive, and no action will lie upon the covenant.
Randolph v. Meek, 1 Martin & Yerger 58;
Moore v.
Vail, 17 Ill. 185; Rawle on Covenants of Title 224.
Page 67 U. S. 508
There is another view of this case which must not be passed over
in silence.
It is not claimed by Noonan in his answer that there was any
fraud or misrepresentation on the part of Lee, or that any fact
exists in regard to the title which was unknown to him when he
bought the property. It appears by the testimony of Orton that
there was a controversy between him and Noonan about water power,
and that it has been adjusted. Orton says: "He" (Noonan) "has no
interest with me in this land of record. I don't know that he has
any." "I don't know that I have any interest in the result of this
suit. I don't know that I will be benefited in any way by Noonan's
success in this suit." This is guarded and peculiar language. It is
impossible to read the testimony of Orton and resist the conclusion
that Noonan bought the property for a purpose, and that having held
the title for several years without paying anything, and
accomplished that purpose, he is now seeking, upon the pretense of
defects of title, finally to avoid the payment of the purchase
money and throw back the property upon the hands of his vendor.
This ungracious work a court of equity will not permit him to
do.
If Noonan had gone into possession, and continued in possession
under his deed from Lee, this elaborate examination of the state of
the title would not have been necessary. With reference to that
class of cases, this Court, in
Patton v.
Taylor, 7 How. 159, after referring to numerous
authorities, thus laid down the law:
"These cases will show that a purchaser in the undisturbed
possession of the land will not be relieved against the payment of
the purchase money on the mere ground of defect of title, there
being no fraud or misrepresentation, and that in such a case he
must seek his remedy at law on the covenants in his deed. That if
there is no fraud and no covenants to secure the title, he is
without remedy, as the vendor selling in good faith is not
responsible for the goodness of his title beyond the extent of his
covenants in the deed. And that further relief will not be afforded
upon the ground of fraud unless it be made a distinct
Page 67 U. S. 509
allegation in the bill, so that it may be put in issue by the
pleadings."
This doctrine is fully sustained by the best considered
authorities.
Corning v. Smith, 2 Seld. 84;
Plat v.
Gilchrist, 3 Sandf. S.C. Rep. 118;
Butler v. Hill, 6
Ohio St. 217;
Beebe v. Swartout, 3 Gilman 162.
The proofs in this case show that before filing his bill, Lee
notified Noonan that he elected to consider the entire amount of
the mortgage debt as due. This entitled him to a decree for the
full amount, although according to the terms of the bond, one of
the installments was not due when the bill was filed.
Noyes v.
Clark, 7 Paige 180.
It remains to consider that part of the decree which directs
Noonan to pay the balance which may remain unsatisfied after
exhausting the proceeds of the mortgaged premises.
The equity jurisdiction of the courts of the United States is
derived from the Constitution and Laws of the United States. Their
powers and rules of decision are the same in all the states. Their
practice is regulated by themselves and by rules established by the
Supreme Court. This Court is invested by law with authority to make
such rules. In all these respects they are unaffected by state
legislation,
Neves v.
Scott, 13 How. 270;
Boyle
v. Zachary Turner, 6 Pet. 658;
Robinson v.
Campbell, 3 Wheat. 323.
A majority of my brethren are of the opinion, and I am directed
by them so to announce, that in the absence of a rule of this Court
authorizing it to be done, it was not competent for the court below
to make such an order.
That part of the decree is reversed. The residue is affirmed.
The cause will be remanded to the court below with instructions to
proceed accordingly.