#### Siedschlag and another, Respondents, vs. Griffin, imp., Appellant.

*May 1*

May *21, 1907.*

*Deeds: Sufficiency of description: Quieting title: Effect of statute: , Possession l)y plaintiff: Lienholder under sheriff’s certificate: Equity: Adequate remedy at law: Objections to evidence:*Pen-dente lite *purchaser: Conclusiveness of judgment.*

1., Land was described in a conveyance as “commencing at the *southeast*corner” of lot *7*in .block 8 in a village according to a certain plat thereof; thence running easterly on the southern ' boundary of said lot to the eastern boundary line thereof; thence northerly on the easterly line twenty-four feet; thence westerly parallel with the southern boundary to a point in the western boundary twenty-four feet north of the place of beginning; thence twenty-four feet southerly on the western bound*107ary line to the place of beginning. *Held,*that the true starting point was manifestly the *southwest*corner of the lot; and- that the conveyance was not void for uncertainty or ambiguity in the description.

2. See. 3186, Stats. (1898), authorizing an action to quiet title to real property, is not a restriction on, but an enlargement of, the powers of a court of equity.

3. Possession in plaintiff is not a requisite to maintaining an-action to quiet title to real estate under sec. 3186, Stats. (1898), where plaintiff sues as a lienholder by virtue of a sheriff's certificate of sale of the land on execution.

4. In an action to quiet title, a defendant who has submitted himself to the jurisdiction of a court of equity by pleading an equitable counterclaim for the same relief cannot, by objecting to the introduction of any evidence, challenge the jurisdiction of the court on the ground that the plaintiff was out of possession and therefore had an adequate remedy at law.

5. In an action to quiet title, where defendant claimed under a land contract and deed, it appeared that after the date of the land contract, but prior to the delivery and recording thereof or of the deed, plaintiff had filed notice of *Ks pendens*in an action brought by him to set aside as fraudulent the conveyances by Which defendant’s grantor held the land. *Held,*that under sec. 3187, Stats. (1898), defendant was a *pendente lite*purchaser, and was therefore bound by the judgment rendered in the action' against his grantor.

Appeai, from a judgment of tbe circuit court for Dodge county: Jakes J. Dick, Circuit Judge.

*Affirmed.*

On February 16, 1904, Annie Donnelly, then the owner and in possession of the real property in question, conveyed the same to her brother John Eox, and on the same day the latter executed back to her a land contract, in the usual form, providing for the payment to Eox of $800. On March 10, 1904, the plaintiffs docketed a judgment in Dodge county in their favor and against Annie Donnelly. Thereafter and on March 15, 1904, Annie Donnelly conveyed by deed to John Eox. On March 21, 1904, an execution upon the aforesaid judgment was levied on the real estate in question, and on July 22, 1904, the land was sold under this judgment and execution, bid in by plaintiffs, and on July 22, 1904, a certifi*108cate of sale on execution issued to tbe plaintiffs, wbicb plaintiffs beld at tbe time of tbe commencement of tbis action. Tbe appellant, *Mary E. Griffin,*claimed under land contract from John Fox bearing date March 31, 1904, recorded May 19, 1904, and a deed bearing date May 23, 1904, recorded May 24, 1904. Tbe complaint averred a mistake in description in tbe deeds of conveyance under wbicb tbe judgment debtor, Donnelly, claimed title and under wbicb Fox claimed title, and did not aver that tbe plaintiffs were in possession. Tbe appellant answered to tbe merits and pleaded two counterclaims, seeking to quiet title in berself to tbe same land.

Tbe findings of fact recite a mutual mistake in tbe description contained in tbe conveyances above mentioned, and establish tbe facts of tbe docketing of said judgment, levy on said property, and tbe issue of tbe sheriff’s certificate of sale to tbe plaintiffs; also, that in a former action by tbe same plaintiffs against Fox and Donnelly judgment was on July 12, 1904, rendered in tbe circuit court for Dodge county in favor of tbe plaintiffs and against Fox and Donnelly, canceling, setting aside, and adjudging null and void as in fraud of tbe plaintiffs tbe deeds from Donnelly to Fox above mentioned, and that tbe appellant, Griffin, if she paid anything at all for her deed from John Fox, paid it after full notice of tbe fraudulent nature of tbe deeds to said John Fox and of tbe action brought by tbe plaintiffs to set aside said deeds as fraudulent. Tbe appellant was in tbis case adjudged to release to tbe plaintiffs all claims to tbe premises and to pay tbe costs of tbe action. It appeared by undisputed evidence that notice of *lis pendens*in tbe suit above mentioned to set aside as fraudulent tbe deeds passing between Fox and Donnelly was duly filed on April 21, 1904. Other facts are stated in tbe opinion.

For tbe appellant there was a brief by *E. E. Brossard*and *J. O.*Mealy, and oral argument by *Mr. Brossard.*

For tbe respondents there was a brief by *GhurchiU & von Briesew,*and oral argument by *Ernst von Briesen.*

*109TiMLiN, J.

Notwithstanding the apparent consensus of opinion among the attorneys, we cannot think that there was in any of the conveyances any description of the land in question so uncertain or ambiguous as to avoid the deed or fail to convey the land.

> “The general rule is, in respect to grants, that where there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance false or mistaken will not frustrate the grant.” *Thompson v. J*ones, 4 Wis. 106.

It has often been said that a description sufficient to enable a surveyor to locate the land upon ground is a good description. In the deeds thought to contain a defective description there was in addition to a description by metes and bourLds a description in these words:

> “Commencing at the southeast comer of lot No. seven "(7) in block No. eight (8) in the village of Reeseville, according to the recorded plat of the village of Reeseville made by W. E. Duffy; thence running easterly on the southern boundary line of said lot to the eastern boundary line thereof; thence northerly on the easterly boundary line of said lot twenty-four (24) feet; thence westerly parallel with the southern boundary of said lot to a point in the western boundary of said lot twenty-four (24)feet north of said place of beginning; thence twenty-four (24) feet southerly on the western boundary line of said lot to said place of beginning.”

The plat mentioned showed lot 7, in block 8, a parallelogram with the east and west boundary lines thereof running slightly east of north and west of south, and with the north and south boundary lines thereof deviating in the same proportion from due east and west lines.

It must be manifest that one could not commence at the southeast corner of any lot and run thence easterly on the southern boundary line thereof. So we are at once informed that this first call is contradictory. The statement that it commences at the southeast comer of the lot is inconsistent with *110the statement that it runs easterly on the southern boundary line of the lot to the eastern boundary line thereof. The only comer at which one could commence and do this is the southwest corner. To run along the southerly boundary of a parallelogram to the intersection of the easterly boundary inevitably lands one at the southeast corner thereof. Having taken us to a point which we reached by following the southerly boundary of the lot to the eastern boundary line thereof, which is necessarily the southeast corner, we proceed northerly on the eastern boundary line of the lot twenty-four feet. From this last point we proceed westerly, and parallel with the southern boundary line of the same lot,-to a point in the western boundary of said lot. This last point is described as twenty-four feet north of the said place of beginning. A point in the westerly boundary line of a parallelogram reached by a line parallel with and twenty-four feet north of its soutji boundary is necessarily twenty-four feet north of the southwest corner of the lot. Our further course is thence twenty-four feet southerly on the western boundary of said lot to said place of beginning. This' is equivalent to saying that the southwest corner is the place of beginning. This resolves whatever doubt or ambiguity there was in the first call of the description and shows that the starting point was the southwest corner.

The findings and judgment reforming the deed, the struggle between the contending parties to patch up their titles by quitclaims, and the extended legal contest involving questions relative to reformation of the instruments were'wholly unnecessary.

It is next contended that the court below erred in overruling the defendant’s objection to the introduction of any evidence under the complaint, and to support this it is argued that the sheriff’s certificate of sale on execution did not confer title or right of possession on the plaintiffs, and that the complaint fails to allege that the plaintiffs are in possession or that the *111land is vacant or unoccupied. These objections indicate some degree of confusion or misunderstanding on this subject. In the first place, sec. 3186, Stats. (1898), is not a restriction upon, but an enlargement of, the powers of a court of equity. *Hart v.*Smith, 44 Wis. 213; *Pier v. Fond du*Lac, 38 Wis. 470; *Ahlhauser v. Loud,*74 Wis. 400, 43 N. W. 169, and cases cited at page 408.

Next, it has been decided by this court that one having secured a lien on real estate by virtue of a levy thereon by attachment is entitled to maintain an action under sec. 3186, E. S. 1878, which is the same as sec. 3186, Stats. (1898), in this respect. *Evans v.*Laughton, 69 Wis. 138, 33 N. W. 573. Also upon an execution levy before sale xñade or certificate of sale issued. *Galloway v.*Hamilton, 68 Wis. 651, 32 N. W. 636. The right exists in this latter case (levy of execution) independently of sec. 3186. *Ahlhauser v. Doud,*74 Wis. 400, 43 N. W. 169. And in the very case where the plaintiff held a sheriff’s certificate of sale of 'real estate on execution it was held that the plaintiff could maintain this action under sec. 3186. *Keyes v. Scanlan,*63 Wis. 345, 23 N. W. 570. In case the plaintiff claims to maintain the action as a lienholder, possession on his part is not a requisite. Besides, this objection goes to the question of remedy at law and could not be raised on objection to evidence. *Hoff v. Olson,*101 Wis. 118, 76 N. W. 1121; *State ex rel. Fowler v. Circuit*Court, 98 Wis. 143, 73 N. W. 788; *Becker v. Trickel,*80 Wis. 484, 50 N. W. 406; *Meyer v.*Garthwaite, 92 Wis. 571, 66 N. W. 704; *Sweetser v.*Silber, 87 Wis. 102, 58 N. W. 239. Here the defendant, having submitted to a court of equity and having herself an equitable counterclaim for the same relief, could hardly expect by objection to evidence to successfully challenge the jurisdiction of a court of equity on the ground that the plaintiffs were out of possession and therefore had an adequate remedy at law. We find no invalidity in the sheriff’s certificate of sale.

*112Tbe general findings of tbe circuit court that tbe land contract from Eos to tbe appellant was not executed until April 2, 1904, and that tbe consideration thereof, if paid at all,, was paid after tbe appellant bad full notice of tbe fraudulent nature of tbe deeds to John Eox and of tbe action brought by tbe plaintiffs to set aside said deeds as fraudulent, we consider amply sustained by tbe evidence. When tbe action in favor of tbe plaintiffs and against Donnelly and Eox was brought and when *Us pevidens*was filed therein on April 21,. 1904, tbe appellant bad no title on record to this land. The evidence would warrant a finding that she bad at this time received no delivery of her land contract and that that was not. delivered until after May 16, 1904, and of course she bad m> deed. Tbe action in which *Us pendens*was filed went on to-judgment, and tbe appellant was in any event clearly within tbe provisions of sec. 3187, Stats. (1898), which provides-that “every purchaser or incumbrancer whose conveyance or-incumbrance is not recorded or filed shall be deemed a subsequent purchaser or incumbrancer and shall be bound by the-proceedings in tbe action to tbe same extent and in tbe same-manner as if be were a party thereto.” Tbe appellant was-therefore bound by tbe proceedings in tbe action against Don-nelly and Eox to set aside their deeds as void, and she was-bound by tbe judgment entered therein to tbe same extent as-Donnelly and Eox were bound by that judgment. That judgment canceled up tbe deed of her grantor, and with that went her title recorded or acquired after tbe filing of *Us pendens.*Although tbe evidence sufficiently sustains tbe finding of the circuit court, yet nothing more was necessary than the introduction of tbe judgment last mentioned, tbe proof of filing-os pendens, and proof that tbe appellant recorded title after-such filing in order to make a case against her for tbe relief' sought in this action. Her alleged possession by attornment of tbe person who was in as tenant of Eox and Donnelly could not take any effect prior to tbe delivery to her of her deeds of *113conveyance or land contract, and, as we believe, that occurred after tbe filing of *lis pendens*in tbe action against Donnelly and Fox, and of course sbe does not claim title under that person.

Several errors are assigned on details of evidence, sucb as finding .that Yenie was tbe agent of tbe appellant; that tbe judgment entered against Donnelly was on default in tbe payment of tbe purchase price of lot A, and sucb like. We regard these as unimportant details upon which tbe judgment appealed from in no wise rests and upon which tbe rights of tbe parties in no wise depend.

The judgment of tbe circuit court should be affirmed.

*By the Court.*— Tbe judgment of tbe circuit court is affirmed.