566, HBJllJPfU'fJ'v. SCHMALTzi,s,nd another. May28,1881.) 1. EtPilESS ST. WIS. +,0081, SUBD. 5.. An,express trust to rent and sell lands for th!l.benel1tot the grantor luring his life, and of other after his death, may be lawfully created under the fifth subdivision of section 2081 of the Revised l:ltatlltes of Wisconsin. 43AME:.l.:SlJPPLEMENTARY INSTRI1MENT. Where · beiteficiarilll! (If' such trust,other than the grantor,are n,amed in a"supplementary instrument, of a later date, be as one in, the construction of the tf\1st.
(,
3. SAME-DESIGNATION 011' BENEFICIARIES. . rrhedesigbation of contingent beneficiaries as lI.class, and Dot by ,nl'lme, will not render' sucb trUst void for indefiniteness. 4; POBSEssiON,-TITLttL....Es'fOPPEL: A; vendee, who eriijl1'8 intO' possession under a .contract of purchase ise!!topped from denying the. title of bis vendor so long a!! he retains u'nder the contract. . ,
5·.
H .4069,. .. ' , , Verbaladmi8Sions by tqe vendee that entered into possession undersueh d&:ttrMt,and that he: had'ti'everpaid anythirtg on the earn!!, are ,nPt,rendered inadm.lsslblein ev.idenee, npon thellUbsequen,r Qf vendee, by sections .4069 anll 4070 of the Revised Stat_.> WiscOnsin.-[ED. , ' , ,
lie
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I:J
,,',11_
Ejeein:limt, " JenkirM, Ellidtt'J 'Winkler, for plaintiff. l10wardtf Wall, for defendants. " DYER,sD. J. 'ThiEds an aotiouof ejectment, to recover the' possession of 140 acres of ·land- in 'Milwaukee county,' oc. cUpied':by thE:! defendant'Schmaltz, as lessee of the defend. ant Merrick;whl'J.claims cowlll3rship in hostility to' the title' of the plaintiff. The defence consists of a denial Of the plain. tiff's title, and of adverse possession fbra pl3riod of 20 years, which possession is also asserted for a period of 10 years under claim of title fouuded upon a deed from one Ellis Worthington to J. Merrick, father of the defendant Levi C. Merrick. The case has been tried without a jury, the parties having
.stipulated to Bubmit,iG to By,regularch,ain ,of .conveyances from the gover;umelJ.t,rthe· <lne the plaintiff's Sf!tntor, By deed of trust executed. OctoberJO, 1868, ,Fellows'conveyed the premises in 'Yith other, lands, W. Penn:sylvll,niaand ;other states, to the: pl,aintiff.;the claul'Je in the deed, with its provisos, being as. follows: " Now j therefore, I, the said Joseph of premises, also of one dollar to me paid by the said Jo9.n HeerD;1ans, the receipt whereof is acknowledged, have sold, and by these presents do grant, assigns, release, and canvey unto the saief 'John HeJrmlms, His forever,all myrealand pellonal estate situat!l4 i* thl"..'leteral' said, te,> have aQ.d to hold tile -flIlmo unto tpe said Jolln. haiJill and assigns,forever:povUld, alw-\,ys, thatt1)e $Bid John sell the said grantedllinds by the pticeg that 'Can' bb got for the same, and.conveythe same in. purt>haSllrs, :with of warraJ,ltybindjng my heirs to warrant and ,tl)ll tl;lHJ.e Ja nds so to be sold and conveyed; a,od, until the said ll\llds shall llold as aforesuch of tllemBll can be rented fori the best priceS that said, he shall can begot, He shall collect all debts owing to execute deeds as aforesaid for all contract :Q-f,sll-lejron.tJ1lj;PI!'JWeJiL,t!>f debts. owing oq of tbe sonal estate shall be paId, dIstributed, and disposed of as f6110ws: to ilefray the expenses of this trust, to wit, I) per'cent; ooilinitBSion on all money received and. paid out, and; all rieces$/)ry aiu:li'r6asQn$.blee.¥1?8I).ditl,lres in and abouttpee,xec,ution of, the .trl,lsti,Wclqdin/?locall,lgenoles; secondlY, during my life the of all moneys received sha\Ibe paid over to me, or appropriated to iny uses undet mYdir'ectl.on';' t'Mrdtir,;8.1te'r my decease, and after the payment:of aUmt jusi;.and legaLdebts a.ndtho expense of .the l!'S aforesaid, the residue!lhal\ bedistriQuted, a$ 9 irected in a writing supplementary to this .deed; to be.execu'ted by me or in case that such writing shall not be executed, th(lU the' t'dfdue shall be distributed to my heirs according to the laws of the: state of'New York." ;; :1..,
By a inst,rnql(lnt. inwritiJ:l:g{ bel' 15, 1868, FellQwsdirected 'the certain real estate to be distributed a.n.d decease, among certain proportions, .with.fnrthe,rdirectioD.l'l the 'as should be aUlong. cording to la",.'pJ.ese of . · ". ", " . ." '.', . ", " .'
1_
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;spf.iqiJied of.3pch,pf ':i',,-
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568
FEDEiU,L'REPORTER.
twenty-ninth aay of Apr:il;1873. On the part of the defendants proof was' made of Ii :b6nd for a deed, <fated January 26, 1857, from Fellow8,;by E.Worthington, his attorney, to Levi J. Merrick, by which Merrick"ffgraed to pay $8,500 for the hind, $1,OOO"doTIars of was to be represented by a note for thl:it, amount, parable September 1,1857', 'With 10 :per cent. interest, :tind: the balance was to -be kecured by note and cent. interest;'and payable I, " ,> I · , , ' ,,' "',',' '
,As a further basis of, jn, I'lvidence a warranty deed',bf the premises ,in 'question" fromEHis Woi-tI:iingt6.n and ,wife to LeviJ. 'Merrick, execut'edMay 1, 1851,'but was followed by proof, of'a deed from Levi .J. ,Mernick to the May',' 8, .,".. , \,{" " and a lease 181<8, · f '.:' .:' _.' '. from th,e defendan,t Merrick to, the defendant Schriia,ltz" exe· outed .April 30. 1879. Proof ,was also, made ot the, execution of aleasEl' of"fi. podionof the premises, dated, November 19, 1858, from Levi J. 'M,errick to one John Cl,l,ppon,f6r the term of, fiye documentary' Elyidence in dlaimof title was introduced, consupport of the sisting ofa mortgage deed of' ;20 acres of said land, executed by Isaac Cappon and:wife to Levi J.Merdck, November 23,18'66; a contract for a deed,of the whole of the premises'in question, dated October Levi J. Merrick to Casper Traxel and the defendatit ,ll release of said premises by the Bank of Milwaukee, 8:Iecuted August 11,1857, from the alleged lien of a judgment recovered July I, 1857, by. the bank, against Ellis Worthington. Proof was also made of possessioh of the premises 'by Levi J. I\ferrick,' and those chi.imiI1g under 'him, as hereltrter morefully'stated. The :first qUestion which arises is, what interest or title, if any, Was vested· iIi the plaintiff by the iustrument of conveyance f:tom Fellows to him, etecuted October 10, 1868, in conriectionwith the' supplementary instrument of dMe' October 15, 18Ml? It Ismitimed' by the plaintiff that this c()!iveyance is a; valid deed, conveying ,the premises to the plaintiff as ': .' -, I '. . ,- - ': "
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HEEBM.tNS. ''D.
569
trustee of ,an express trust, and :vesting 'the legal title On the other hand, the validity of ,this instr''\lment. is.. on the ground that, if it has,any force whatever, be considered a power in :erea.ted for of the donor during his life; that as it,p:foyidesfor· the of the residue of the his.death,it happening of that event, only ta,ke cafteet as that no valid trust is created either,undet!the sin statute of uses and ;,thll>twhat,eve1; t,rust w;as elared, lapsed ,on' the death of .FeUow8;and ,did· notsnp:ive him; that thegrantingelause jn ,th,e bJ:whie4 the fee is atttemptedto be conveyed,i, rl3pugnaJ;l.t. tQo tAe <Qther parts of thedeed;ttnd! therefore; that plahltiff: has n9 such interest or title as: enableslili;n: .majntain this,action. 'lilie statute of Wisconsin in when this l3O,I\.xeyaneeWM executed"and now ,knownfl,s,sectiQn; of the . present Revision, I' , '., " ; "Express trusts inay be created'for poses: (I) To sell landsfor the benefit of; «reditors ;.(2). tg sell, or lease lands for th{\benefit oqe,gatees, 'for of any charge thereo.n; (3) to receive the. prol1ts of lalias, ana apply them to t'he'use of any person d\lrl'Iigtlle life ofSuch'person,or for any shorter term\ sl1bject to the 'rules, ptescdb6\d in the chapter; (4) to receive the rents ll-nd of lands, toaccumulll,te the same, for the benefit of any married wonllln, or for any of the and within the limits prescribed in the preceding chapter ; (5):£01' beneficial interests of any person>or'personS\ when 8uchtrtisi 'is. fully of it, expressed and clearly defined upon the in this title." . subject to the limitations as to time ,,'
It is understood that this is a of the New York statute, except that the fifth subdivision has been added in this state, and is not found in the" statute of New York. The instrument of conveyance in question has received the attention of the courts of New York in litigation arising thereon in that state. Heermans v. Robertson, 64N. Y. 332; Fellows v. Heermans, 4 Lansing, 230; 13 Abb. Pro (N. S.) 1./ ' In Heermans V. Robertson, sl.tpr.a,the fact wasl that afte:r the execution of the trust conveyance from Fellows to Heermans, Fellows 'sold to Robertson ,a portion of the lands em-
'570
Rbbertson went j.nto' possession UM.'er+hlB icotltia;ct 06 'a.nd after FeUows' death YtlUtlSJ;h;fQugJa:t ejElt:ltment; to 'recover possession of the land. rife ltlotti'tihJld:that, the plaintiff, in the action 't111sti conveyance of anastate in the hthdsin: trust of sale, as Fellows was· efttitled toiil'eceiv.e to ,his own U"se all receipts from sale durand/as ll'e ootildhave;cottlpelled an execution :of trust'bY'ltt instea.d of resorting to a:court of made a sale" ,thm./accomplishing re\lI11t, Robertson;, 'not being in default, was in equity entitled: 'to MId thepl'emises as the plaintiff. Two 'of and' Rapallo, place their judgment. 'ground' th:at, under his cotltract with Fellows" Robertson.,et:lta.blisood:"ineq,n}table defenCe to the action. Three of .MlenjAndreWB, and 'Miller, go further,. and hold that no express trust watS'crea.ted by the instrument to intGeffflct at: Jhe, death Fellows; and, although theydonbt <Mcide thtfpoint,' strongly indicate it to be theirview t1'lllt, no express . tt,ust is,!;declated in the instrument for I .',';'" .:.; , ,. , , . , a.J'!.y,qf .thepurpQsesfqr by law New York, such trusts 'may:be creaited. Barl, J., dissented, and was of the· opinion. that' the 'cOnveyance vested in Heermans the legal title a 'valid trust:': " . :. ,In FeUows v. Heermans, it w'asj.,held' by the supreme court oFNew York; one of the judges dissenting, that if the pro-vision in the deed. of October 10th, with regard to sale oftli'e lands, was inoperative' as a.. trust, the provision for renting the Rnd: applying the avails would, nev'e-rtheless, stand as a valid trust to receive'therents and profits; and, further, that 'the cdnveyance contained ,a valid power in trust. Itis Mbe borne in mind' that these decisions are based upon a constructlongfthe statute of New York, and although the opinions of the judges :inaicat6 that they had many doubts "as to the 'operative effect that should be 'given to the, conveyin question, 'I think ita fa.ir deductiob from the decisions that, in New'Y-orknthi.s.instrument could not be upheld o
braood: in: the' trust ;deadi r·
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as declaring i af ,·th& i purpo6eS for which, by the law of t4l;\t bacreated. in tlGestiQIl;:be,re, ,my opinipn'jis: that for thijJ conveyance !Ollst,bl'l.(.ound"if' at,Jtll, ;in the atate,.:vrpiQ.b!. i!'lMt: confifth subdivision of the statute tained in the !Sew York the of an express'trust the intetests of any or when such trpat. il[l.flll\y ;and clearly defined upon the face of the. ing this clause in the Wis,consin ,statute ofJ,lses and trusts, Chief Justice Dixon, in Gqoarichv,. The Gity oIMitUlaukee; 24 Wis. 430, says that" It is not found in the, stattite 9.£ .New York, ahd ,first appeared in' this state in the Hevised Statutes of 1849. The, addition of ,tkat ,subdivision to the four which precede it, and which are found in the ;tatute of New York, establishes, as it was undoubtedly mtended to 'do, a policy in this state upon the subject of active trusts entirely difIercnt!from that which prevails in the state of New York. It shows very clearly that M actilJ6 trusts llJere intended to be affected 01' by, anyprom.ion of the though the language of some of Its' sections, 'literlilly construed, may be broad enough to iilClllde them; but that any 81.tchtrust may still be' created, when, in the langulloge of subdivision 5, 'it is' fully expressed and clearly defined upon the face of the instrument creatipg ,it.' "
It follows, therefore, .that # this provision Qf the sin statute authorizes such a trust as is created by the conveyance in .question, the decisions in New Yprk before cited are inapplicable. Does the declare an express trust of a nature covered by this. subdivision of the statute? It is a conveyance for a specified consideration to the plaintiff, Heermans. It. d.irects ,tlJ,e grantee to s,ell the lands by retail, with coveIUj.nts of, warranty. It provides further that until sale suoh part of the Iltnds as the grantee the best prices obtainable. It can rent shall be rented contains a direction to colle!1t the grantor's debts, and finally provides that the avails of the estates, and personal, shall be paid and distributed-First, to' defray the expenses ,of the trust; secondly, to Pity to t,he his Ffe, or to appropriate to his use, under his direction,the residue of all moneys received; and, thirdly, after his decease, ;and the
672
FEDERiL'REPORTER.
payment of his debts and' the of the 'trust, to distribute the residue as directed ina writing supplementary, to be thereafter exeoutEld; t)rl'in case Buch writing is notexecuted, to his heirs; 'Theb,by the aupplementa.l'y instrument of,Ootober 15th/a.peoific'dii>tribution of sueh ,residue after the death of the grs,ntor, iv'arious relatives, most of whom are named, was'directed:' Of course the two instruments of Oetober 1Othand: 15th j are" to be considered tdgether,' and as -oueinstrument; and, notwithstanding 'the' ableiirgument of .the learned counsel for thedefenda,'nts, I am '(Hearly of the opinion that i Qvalid tI'u'at in. these instruments under the fifth subdivision of the statute of' this state. That suhdi1'i.sion" it will be ·authorizes the creation of' an express trus'tHor'the beneficial interests of any person or Bons. SureJy there was 'here ex.pressly declared au active trust for the' beneficial interest of the grantor during· his life, and of other persons afte:i' his death. Apt abd proper terms are used in the conveyance to pass the title. Undoubtedly it was'the intentiollof the grantor to convey the title; for he says that from the infirmities of advanced age he deems it best to make the conveyall'ci:l, an.d words ample to conveytlie fee'8Jud to divesHhegrantOr'ofhisHtle are used 'in the granting cIad s e . ' ,There was attust to receive the rents arid profits ahd,apply them to thetrs!:l Of theJgranto'r,because from to rent must be 'itnplIed a.n authority to receive the rents. Thi:Jre was a powei: toseH and to apply and distribute the estate. The trusts we1:e active, and for the beneficial interests of designated pei'soJis. For certain purposes they survived death 'Ofthegrantoi, a.ndwerEl, I thhik, of a nature embraced within the Wisconsin statute, the language of which is so br0ad as to remove the difficulties arising, under thEl NeW' York statute; and to make such discussion as was involved in' the New York cases unnecessary. Bitt it is con· tende,d that the trust attempted to be created by this conveyance is not fully expressed and clearly defined upon the face of the instrument. Undoubtedly the trusts are sufficiently 1
,I
ffEERMANS'V ·. ,SCRlIALTZ.
expressed . . f!lit: 38 they relate ,to Fellows,the grantor.. ,Thili'was notquesiioned on the argument. :,After the deceaseoLFelldws :'ibi provided' tha.t. his debts and the expenses' of the t,ustshoulc1be paid, and then that the residue should·be distrilihted as di:reciedin ;a.supplementary instrument to -By that instrument the grantor payment! ot cert8lin lifeiannuities .to 'sis;ters, brothers, ,nephews1uieceg,.and other relatives, all of ·that Heermans·· "convey to the myniece_P4ebes:WYllkoop surviving· mel· with' a ehildren life. estate, to the said Phebe Wynkoop; theJatmon whieh'sbe etc. j thirdly" that, conveyance· be made 10.Nile now ·F.Wynkoop of a cer:tain othez: farm, and that his brother Sylvanus Fellows ana: wife, or their survivor, have:the use of certain ,property described ; fourthlY, that the residue of theava.ils of ,his estate shall be divided equally among his nephews and nieces, aU of whom are named; and BiS part of this :resjduary clause it is provided· that "the shares of such of the afqt6sMd ;residuary ·shareholdel1s:as shaU have died prio.r. to, my dearth shall distxibutedto ,their. children, re.accQrding to lawj.orin-case tha,tthey;or any of themj <00 child orchildl'an slU"viving me, Ahen is)lch shj:l,re'or s.haresshall be extinguished' and ignored in. the .dis· tribution." As the two instruments of October 10th and he treated as one instrurnent;in arriving at the. entirE} trust which they create. As'to all the beneficiaries named in theaupplementary instrument, there can be no doubt that thlltrust ,is. sufficiently expressed. and defined. Butit:ia.claiwed that the p&",sonswho are to take under the _ second clauseofthe iU6txuxaent, and those who are to receive ,property under the residualiY clause in case any of the perdie. before the decease of the grantor, .sons named should have been designa,ted by nalile, and that this omission leaves the trust so far unexpressed and undefined as to invai. idate the iu.strument as a eonveyance intrust. ,'!I 'am unable ,to concur -in that,view:. Most of the ultimate recipients of
the properly a.ndl the proportions tberrare to receive are stated. The' trusts'itre all clearly/defined. In, the :two instances inwhicllit is- provided thittdiatribution shall be made among the ,children of certain pers'ons, there nation of a class rof ,bel'1efitJiaries. ': The gr.antot in such, a CaB,e cOuld not know when: the'trost is created, who ofrthe class whom he desiredfu share :in his property,mightbe living at 'his death, or the names bf Buch persons, or )Vhetherthere would be children of someothef beriefioiary named 'surviving .him; ,arid' I do not think it is the[z,neaning br intentionbfthe statdteithat the failure to name :ine'very inst8Jllce the peNon'whom he might desire in cflrtain contingencies to ultimately share in his estate-:..the 'class in whichsuchdperson wouad belong designated"'-should be held to defeat the being conveyance as a valid trust instrument, tire gronndthat it does not fully express arid clearly define the trust>;, 'and" on the whole, I am of the opinion that by the instruments in ques· ,tion an active trtJ.st, valid'uhderthe statute, was created, and that the plaintiff was made the trustee of anellpress:ttust, clothed with the legal title to the premises :in con.troversy. The remaining 'question ,is, have the defimdants ,a paramount title? The proofs shbW that Levi J; Merrick ·,riever acquired a title by conveyance from Fellows. He'held a bond for a deed, and entered into possession thereunder. :It is also 'proven that he cut timber on· the premises, and, by ,personal acts of occupancy and use, and by various lettings of portions of the land to other persons, he maintained the possession of an ostensible owner for a long series of years. In May, 1857, he received from Worthington a deed of the entire tract, but the evidence does'not show that Worthington ever had any title. Merrick 'Undertook to sell certain parcels of the land to third 'parties; but the contracts were never consummated because he could not a clear title. It will be noticed, also, that the deed from Worthington wits made long before the instalments of purchase money were due under 'the contract of purchase from FeUl}ws. There is 'no proof that Merrick ever paid any portion of that purchase
"On 'the, contlary; . the' testimony tends': to affirmatiyely show: tlmt 1·lie 'paid: hQUhirig,' and'.tJui.'b·· efforts made in 1864: to;()btain tma'\tailing. ' For,nllany JYears, wlthtwoo.r; three etceptions, theldahdswete sold'for;unpaid t;txes,',atid Feilo'Ws;by.hiB ,agent, .recJeemed them from the; tax sales. It. isnevertheles8 !true,arid ,this was hard:ly:disputed. om :the trial, that ,MerridksteadilyJJe.l:ereised'acts:of poss8ssion,8iDd dealt with, the :land: BS the claimant: ofth&j title;' .·,One,of·,theplaintiff·s wifuless'es.,.,...McConnell...:-testifies, hO\V8Vel'j that in 186:5 he intopogSEli8L: sionby:virtue of the: .oon.raet Iwnh: Fellows" mftde SEd that· he had lOut timber,: :eleared' ll"part of ",tbe' lana;and, rEinted a' part., : >He 'tel>tifies; 'alE/o; :that -Merrick 'admitted to' him that heqad 'paid nothing: -m ,the :oontl'wetplud :had not kept'the tfJ>xes pajd'; thaif ,MePJiiek'offeredto 'relihqnish: all: cla.indor' $500, 'and thought I himself' entitled to that sumlfor i clearillg apart olthe J.ahdy·; The proof also that at the same time of Fellows, redeemed the lands.frQm various tax sales. ",-: . This testimony was ol>jected the ground that Merrick is "de.all; that Fellows' Jagel,lt is the Wisconsin Sections 4069, 4070, ·St. Wis. But it is clear, I think, t,hat the.objec,tion ir;teaning statute.' ;Now, tbestatute ofthia .state, in relation to adverse posBession,'provides that "where the 00oupantjo:r.those under whcimheclaims,. entered into the<posaession of any premis6s.under,ela.im of title, exclusive oj any other right, founding suchrcIaim upon some written instrument as being a conveyance of the premises in question, '·. and there has be-en a continual occupation and possession oLthe premiseS inCluded' in Buch in$trument · · , under such claim for. ,10 years, the premises so' included· shall ,be deemed:to have.bee¥ ;.]neld adversely, · · and such' d.eolareda bar th'e; l·eoo.veryof suchl real estate or the possession thereof. Fu:d'ber, prQ-rides.tMt"whe1J; there' has been an
Re".
I
aQtual, contintud, occupation of'any :premises,under of title, exclu,iVe of,atn.y'otherrigkt;,btit not founded;uponany written inBlirument" .. the actually ocoupied ." '. 'i·:, shall"baldeemed to De held, adversely," and such an ',adverse 'p@ss88sion, ,continuing;' for 20 :years, ' shaU bar an action for the ,recovery:'ef the tlstate. , ,Under these st81tutes it is clear that the possession ,claimed t<hbe81dverse must be under, a, ,claim of title which is; antag-: onistic to the former owner'g,·title;!It must besrlch as invo!Tas' the absolute repudiation of. the original title, and: it must,be a claim ;of title. whether) fouhded upon a mitten instrument' ornO,t, exclusive, ()f any otherrigkt.' Now,' ,there ate:s; leading principlesiofla:w 8p.plioableto the present,case must not beoved00ked., adv6rse'possessionis: tlI1ways' ,.to be cOtist:rued ':stdeU,;&nd: ever.Y' presumption! is :to 1¥l)'made in favOr',of the trUe ,oW-hell ; ,Such posse8sio:n:isi not to be made out by inference, but byiclear and positive proof. Sydnor v. Palmer, 29 Wis. cited.. "To constitute a valid and effectual adverse possession, thepogse!lsion mu,st in, itsinception. , ;>t)NQ POsiWssion Clln he adY!lTse, except the person in ,possession holds for himself, to the of all, others, and udder a claim oftitlEi"Whicl:{]s antagonfudd 'td'thitt of: the true owner, The claim of -that of ant, and not in Wrt,y tp Tyllill' on Ejeotment, 874.. "W:\1ere lln.CJer pf. t)lfl: right owner's estate; the possessioll wil'r'reta.infts through any succession of· occupants': of'ilie land, and will· be ,presumed. to 'be in ' subservience to the rightful interest."; ,lddlllO.
The character of one's possession, of land by".thatof his entry, unlesa.,he',haslgiven the party;holding' the title under which he enteroo..,noticeo£ his intention not to hold under that title, or unless there has been a lega.l evic. tion, and possession taken oreontinued: uhder a paramonnt title. Quinn v. QU'inn, 27 WiS'. 168.·: One who entElrs under a. oontract 'of purchase is estoppedfrom denying the title of; his ' vendor so long as he retai1!lB ipossession under the contract. Millerv-.. Larson, 17 Wis.644!; Quinn v. Quinn, 8upra;. Jack. 80n ex demo v. Walker, 7 Cowen, 637; A party in possession of lands, reoognizing the title of a claimant, and agreeing 1;0
HEEBlUNS V. SOHMALTZ.
577
purchase, may subsequently deny such title, set up title in himself, and .show that his acknowledgPlent 'was produced by imposition or made under a misapprehensiouof hisrightsj but a party entering into possession under an agreement to purchase, cannot dispute the title of him under whom he enters until after a surrender of the possession. Jackson demo V. Spear, 7 Wend. 401. Now, it cannot be claimed thll.t Merrick's possession was hostile in its mception.. It began in subservience. to the interest and title of Fellows. Such having been its character the time of his entry, Merrick's possession tnereafter retaimla its original quality, because there never was a legal eviction of Fellows under a paramount title, nor was notice given to him of Merrick's intention to hold under such a title, nor was there ever a surrender of the possession whioh .flowed from the original entry. There was not an entry' into possession by Merrick under the present claim of title, exclusive of any other right, which the statute makes essential whether the possession be of 20 years under a claim not founded upon a written instrument, or of 10 years under a claim founded upon such an instrument. And, under the authorities, the case seems clearly one, especially in the light of aU the testi. mony, in which the defendants are estopped to deny the title of Fellows and to assert param()unt title by adverse possession. The alleged possession under the Worthington deed began after the contract with Fellows was made, and after the entry under that contract, and, as has been shown, the testimony discloses acts and admissions by Merrick which point to the conclusion that he held under his contract. Further, it is shown that in 1875 Merrick took proceedings under the statute of this state to acquire a tax deed of the premises, and in the affidavit which the statute required him to make, and which is part of the proceedings, he swore that the owner of the land was a non-resident of the county of Milwaukee. It was argued by defendant's that by this allusion to the owner he meant himself; but that is quite inconsistent with the nature and reason of thetransacv.7,no.5-37
ex
578
lI'EDERAL REPORTER.,
tion., The witness McGregor testifies that when, as the at,torney of Fellows, he called on Merrick in 1864 to effect a .settleplent, Merrick excused himself from payment on the 'ground that he had not received a deed of the land as promised, ,and had 4:jonsequence sustained injQry. Indeed, the circumstances tend strongly to show an estoppel from express admissions and positive acts made and done in recognition of Fellows' title. It is true that a long time has elapsed. Merrick's possession, began, but that cannot defendant's case unless it was a possession upon which a vaiid claim of title could be founded within the principlesof law already adverted to. Particular attention was ,called to the release of this land from the lien of a judgment 'against Worthington, executed by the bank of Milwaukee, and in evidence. This, it may be admitted, is a circumstance tending to show that it was at least supposed at the time that Worthington held the title. But there is no proof that he did in fact have the title, and it is a noticeable feature of the, proceeding that the banlt judgment was recovered within six montps a,fter Merrick took a bond for a deed from Fellows, and before even the first Instalment of the purchase money was due, and after Worthington had undertaken to convey to Merrick. A pencil memorandum, made, I think, by Fellows, is in evidence, and is to the effect that Worthington sold the land to Merrick, but under objection, on the part of Fellows, to giving title until $1,000 was paid; that Worthington gave a writing of some sort, and then, to make it safe, he was to take the title, and himself give personal security, and Merrick's note in addition; that, because Merrick would not give real estate security, he (Fellows) thought it best to take Worthington's mortgage and Merrick's note; and then, he says, the papers were nearly a year at Milwaukee for that purpose.' The memorandum is not sufficiently full to quite explain itself, but to the extent that it is self-explanatory it indicates tha,t the arrangemer{t it speaks of was never carried out, and at 'all events it is insufficient to satisfy the mind
NICHOLS V.
BEARD;·
579
that the title to the land was conveyed by Fello-ws to Worthington. (r have examined the cases oited by defendants' counsel, 2ind do not find that they are in conflict with the principles before stated and that seem to be controlling here. One of them (Griswold v. Butler, 3 Conn. 227) holds, what would hardly be disputed, that where a person takes possession under a parol agreement for a· purchase, and pays for the land, or purchases it and takes & deed which is defective, the possession of the purchaser which ensues is prima facie under a claim of title in himself, and is therefore adverse. That is not this case; because Merriok neither took & deed fl'om the true owner nor paid for the land. Without further discussion of the questions involved, I am of the opinion that the title to the lands in suit should be adjudged to be in the plaintiff, and that he is entitled to recover possession.
NICHOLS
and others v. BEARD, Collector.
(aircUH Oourt, D. Massachusetts. Ma,21,1881.) 1. llIl'OllTS-WOOL WEB-REV. ST. f 2504, SCHKD. M, p. 477. Certain imported merchandise, made of India rubber, wool, and cotton, and used for gores, or gussets, in the manufacture of congress boots, was invoiced as wool gusset, or wool terry, and entered as wool web. Held, that such merchandise was "webbing .. .. · composed Wholly, or in part, of India rubber, not otherwise provided for," within the terms of section 2504 of the Revised Statutes, (Sched. M, p. 477, 2d Ed..,) and were therefore only subject to a duty of 35 per cent.-[ED.
Charles Levi Woodbury and J. P. Tucker, for plaintiffs. Geo. P. Sanger, U. S. Att'y, for defendant. LOWELL, C. J. The faots in this case are agreed. The plaintiffs imported into Boston certain merchandise invoioed as wool gusset, or wool terry, and entered as wool