#### Benedict vs. Horner.

Under section 26, chap. 132, *R.*S., the court had power to grant to the defendant any affirmative relief to which he might be entitled, whether issue were joined in the case before or after the adoption of the Code, if the facts constituting a foundation for it were stated in the pleadings, even though such relief were not demanded in the answer.

A and B made a deed to C, by which, after reciting that the parties had been partners, and that in collecting debts due said firm, they had severally, in their individual names, acquired title to real estate situated in New York and other states, they sold and assigned to C, “ all and every parcel of real estate, by way of deed, mortgage or otherwise acquired heretofore, or now [then] held in manner aforesaid, in the state of New York or elsewhere.” At the time of the execution of the deed, A held the legal title to certain lands in this state, and after the deed was recorded in the county where the lands were situate, a creditor obtained judgment against him, and purchased the land at sheriff's sale, under an execution upon the judgment. In a suit by C, to remove the cloud thus created upon his title, it was *held,*that if the deed was not void for uncertainty (as to which the court did not decide), the plaintiff, to maintain his title to said lands under it, must show the facts which brought them within the general description in the deed, by proofs which left nothing to rest upon conjecture or mere probability of fact.

*Seld,*also, that if oral proof of an admission by A, at the time he acquired the title, that he received it in payment of a debt due the firm, would be competent evidence to prove that fact, (a point not decided,) the testimony of the single witness in this case, given twelve years after the transaction took place, was not sufficiently certain and positive, to form satisfactory proof of the admission.

APPEAL from tbe Circuit Court for *Kenosha*County)

This was a suit in equity, commenced in 1855 by *Lewis*Benedict, to remove a cloud upon his title to certain real estate in the city of Kenosha. The bill alleged that on the 27th of October, 1848, one SpencerS. Benedict,.and one Walter M. Rockwell, executed to the plaintiff a deed (set forth at length), in which, after reciting that they and the plaintiff had lately been copartners in business under the names of Lewis Benedict & Son, and Lewis Benedict & Co., and that in the course of the collection of debts due them in New York and other states, the several partners, in their own names severally, or jointly with some other of said firm, had acquired title to or interest in real estate situated in New York or some other of the United States, the grantors, in consideration of, &c., granted, assigned, &c., to the plaintiff, “all and every parcel of real estate, by way oí *257deed or mortgage, or otherwise, acquired heretofore, or now held in manner aforesaid, in the state of New or elsewhere.” This deed was recorded in the register’s office of the county of Kenosha, December 8, 1851. The bill also alleged that at the time of the execution of the deed, the legal title to the lands in controversy was in said Spencer S. Benedict, but that the lands had been acquired by him in settling up demands due to the aforesaid firms, and to *Lewis Benedict*individually; that the consideration for the lands was paid by said firms and by said *Lewis Benedict,*being debts due from the owner of said lands to said firms and said Lewis, the title having been taken in the individual name of said Spencer S. only for convenience, according to the practice of said firms; and that the title to said property passed to the complainant by said deed of the 27th of October, 1848. The real estatS in controversy was attached in June, 1851, in a suit brought by *Horner*against said Spencer S. Benedict and said Rockwell, and was bought by *Horner*at a sheriff’s sale to satisfy the judgment which he recovered in that suit in May, 1852, and this suit was brought to remove the cloud thus created upon the complainant’s title. The answer, which was under oath, stated that the defendant had no knowledge or information except from the allegations of the bill, and therefore denied, that the complaíñant was, at the time of the filing of the bill, or had been since the 27th of October, 1848, owner in fee of the lands in controversy; or that on said last mentioned day, the legal title to said lands was in Spencer S. Benedict; or that the latter acquired such title in the manner and for the purposes mentioned in the bill; but insisted that the deed of October 27th, 1848, set forth in the bill, was inoperative and void, both at law and in equity, “ because of the' want of proper description of any of the lands in such deed, and because of its indefiniteness and uncertainty,” claiming for his answer in reference to such deed, the effect of a demurrer to the bill. The answer also alleged that at the time of the issuing of the attachment in the bill mentioned, the title to all of the lands in controversy was in Spencer S. Benedict, and they were liable to said attachment.

*258Tbe bill and answer contained other allegations not im- . portant to be stated here. The prayer of the answer was merely that the defendant be dismissed with his reasonable costs. The answer was filed February 27th, 1857. There was no replication.

By stipulation of the parties, the evidence was taken before a court commissioner in April, 1858. The plaintiff introduced in evidence a certified copy of the deed of October 27th, 1848, mentioned in the bill. E. W. Evans, as a witness for the plaintiff, testified as follows: “In 1846, I think, Mr. John H. Nichols, formerly a merchant of Kenosha, settled with Spencer S. Benedict, of the firm of Benedict & Son or Benedict & Co., of Albany, N. Y., and being indebted to said firm, turned out in payment of that indebtedness, to Spencer S. Benedict, I think, the real estate in question.” *“*The consideration that passed for the lands claimed by the plaintiff in this action, was a prior indebtedness due from John H. Nichols to Spencer S. Benedict & Son or Lewis Benedict & Co.” On cross-examination, the witness said: “I think I first became acquainted with Spencer S. Benedict in 1846. I was not present when Nichols contracted the debt about which I have testified; do not personally know with whom Nichols settled said *claim;*know nothing about said claim except what I have heard from Nichols, Spencer S. Benedict or *Lewis*Benedict; know nothing of Rockwell being a partner in business with Spencer S. Benedict and *Lewis Benedict,*except from correspondence with the Benedicts; know nothing about the partnerships known under the name of Lewis Benedict & Son, or Lewis Benedict & Co. — when those firms commenced, when they terminated, or the terms of the partnership, except by correspondence with the Benedicts; cannot state how large their claim against Nichols was ; was not present at the settlement, nor when the real estate was turned out; all I know of the matter I derived from conversations with Nichols or S. S. Benedict. In the summer of 1846, I think, S. S. Benedict came to Kenosha to settle an indebtedness of Mr. Nichols to the firms above named, and as I was consulted with by the above named Nichols and Benedict about the settlement and *259tbe deeding of tbe property in question, I derived myknowl-edge of tbe facts, and from no other source. I saw no given or receipts passed.” Tbe defendants objected, before tbe commissioner, to tbe admission in evidence of tbe deed under wbicb tbe complainant claimed, on tbe ground tbat it was void for vagueness and uncertainty; and objected also to tbe testimony of Evans as incompetent. These objections were renewed at tbe bearing, but were overruled. Tbe circuit judge found as facts, among other things, tbat there was no sufficient evidence tbat tbe consideration for tbe conveyance of thé lands in question to Spencer S. Benedict, was a debt due from said Nichols to Benedict & Son, or ■ to Benedict & Co.; and tbat tbe title to said lands passed to tbe defendant *Horner*by virtue of tbe sheriff’s sale upon tbe execution against S. S. Benedict. And as conclusions of law, tbe judge found tbat tbe deed from Spencer S. Benedict and Bockwell to *Lewis*Benedict, was inoperative to convey any title to said *Lewis*in said lands, as against tbe title of tbe defendant acquired under tbe sale upon said execution.

Judgment accordingly, and “ tbat tbe title [to said lands] be and is quieted in tbe said *James*Horner, bis heirs and assigns.”

*H. W. Hvans,*for appellant:

I. Tbe deed of October, 1840, with tbe evidence offered to identify tbe real estate therein referred to, was sufficiently certain to vest the title to tbe lands in controversy in *Lewis Benedict.*2 Hilliard on Beal Property, pp. .887-8, secs. 42, 43; id., pp. 341-2, secs. 73-77; id., p. 342, secs. 79, 81, 82 ; id., p. 345, sec. 91; *Jachson vs. DeLancey,*11 Johns., 365; *Same Case,*13 id., 537; *Jachson vs. Bosevelt,*id., 97; *Allen vs.*Bates, 6 Pick, 460 ; *Brown vs. Bellows,*4 id., 179; *Haven vs. Bichardson,*5 N. H., 113; *Lyman^vs. Loomis,*id, 408; *Barnard vs. Martin,*id., 537; *Paine vs. Webster,*1 Yt., 131; *Bunt vs. Holland,*14 Mass., 149; and especially *Foss vs. Crisp,*20 Pick, 121, and *Jachson vs. Parhhurst,*4 Wend., 874. 2. This deed was a general *assignment*to *Lewis Benedict of all*interest in lands held by tbe grantors in their individual names, acquired in a particular way, and for which *260a Parrá-otd-ar consideration was paid, and tbe description is certain to pass tbe property by snob assignment under tbe decision in *Roseboom vs. Mosher,*2 Denio, 61. See alSo 3 McCord, 269; *Kea vs. Robeson,*5 Iredell’s Eq., 373. 3. Tbe allegation in tbe bill, that tbe property in question was acquired by S. S. Benedict in payment of a debt due from Nicbols to tbe firms of Lewis Benedict & Son, and Lewis Benedict & Co., &c., and that although tbe title, for convenience, was taken in tbe name of S. S. Benedict, yet in equity tbe property belonged to tbe firm, is met in tbe answer only by a statement that tbe defendant has no knowledge, &c., except as be is informed by tbe bill, and requires tbe complainant to prove tbe same. In case of such a denial of a positive averment in the bill based upon tbe complainant’s personal knowledge, one witness is sufficient to sustain tbe bill. *Combs vs. Boswell,*1 Dana, 474; *Knickerbocker vs. Harris,*1 Paige, 209; *Lawrence vs.*Lawrence, 4 Bibb, *858*; *Drury vs.*Conner, 6 Harr. & Johns., 288; *Hopkins vs.*Stump, 2 id., 304; *Piérson vs. Catlin,*3 Yt., 272; *Waters vs. Creagh,*4 Stewart & Porter, 410; *Claris''s Adm’rs vs. Van Riemsdyh,*9 Oranch, 153. 4. Evans’s testimony shows that S. S. Benedict, at tbe time be acquired tbe title to this real estate, declared that it was acquired in tbe manner set forth in tbe bill, and that Nicbols made a similar declaration. These declarations made by tbe parties in interest at tbe time of tbe transaction, are conclusive upon that point. 1 Greenl. Ev., p. 249, § 191; id., p. 246, § 189; *Clark vs. Hougham,*2 B. &. C., 149; *Mountstephen vs.*Brooke, 3 B. & Aid., 141; *Wool-way vs.*Rowe, 1 Ad. & El., 114; *Johnson vs. Ward,*6 Esp., 47; *Dor vs. Pettitt,*5 B. & Ad., 223 ; *Brattle St. Church vs. Bullard,*2 Met., 363; *North vs. Miles,*1 Campb., 390; 1 Starkie on Ev., 26; 1 Greenl. Ev., p. 239, § 180; *Bartlett vs. Delprat,*4 Mass., 702-707; *Clarice vs. Waite,*12 Mass., 439 ; *Bridge vs. Hggleston,*14 id., 245, 250; *Phoenix vs. Lngraham,*5 Johns., 412; *Packer vs. Consdhts,*1 Serg. & Eawle, 526; *Patton vs. Qoldsborough,*9 id., 47; *Babb vs. Clemson,*12 id., 328. 5. Tbe decree should be reversed because it grants affirmative relief not demanded in tbe answer, not only declaring tbe deed to *Lewis Benedict*void, but proceeding to *261establish tbe title to tbe lands in controversy in *James Hor-ner,*and to quiet tbe title in bim and bis beirs Where a defendant desires affirmative relief, be must seek it by an original or cross bill. *Tarleton vs.*Vietes, 1 Oilman, 470; *German vs.*Machín, 6 Paige, 290; Smith’s Obancery Pr., 459 ; Mitford’s PI, 75; *Ballance vs.*Underhill, S Scam., 461.

*J. J.*Pettit, for respondent:

1. Tbe answer of no knowledge or information puts tbe complainant to strict proof of bis allegations so answered. Story’s Eq. PL, 854, 868, b, and note 1; 2 Daniell’s Cb. Pr., 257, 402. 2. Tbe deed from S. S. Benedict and Rockwell to tbe plaintiff is void for uncertainty. *'Jackson vs. Park-*hurst, 4 Wend., 369, 374; 3 C. & H.’s Notes to Pbil. Ev., 1420-23 ; *Jackson vs.*DeLancey, 11 John-., 367; same case, 13 id., 526, 551; *Jackson vs.*Bosevelt, id., 97, 103; *Abed vs. Badcliff.\*id., 297; *Jackson vs.*Delong, 9 id., 43; *Schuyler vs. Vanderveer,*235, 240, and note. 3. Parol proof to explain a *latent*ambiguity must be .clear and convincing. 3 C. & H.’s Notes, 1358-1363 ; Pbil. Ev., p. 531 (N. Y. Ed. of 1823, pp. 467, 473). But tbe ambiguity here is really *patent,*and cannot be explained by parol. Pbil. Ev. (Ed. of 1823), p. 473. 3. Tbe answer denies that tbe defendant bad any knowledge or information whether S. S. Benedict owned tbe land in question when be and Rockwell executed their deed to *Lewis Benedict.*Tbe only evidence offered to show title in S. S. Benedict at that time, was tbe testimony of Evans, that Nicbols turned out tbe land to bim, &c. But conveyances of an interest in land must be in writing (R. S., 1849, p. 388, sec. 6; *Hazleton vs.*Putnam, 3 Chand., 117-129), and tbe only proper evidence of such conveyance was tbe deed itself. *Whiting vs.*Gould, 2 Wis., 552, 584; *Abed vs. Bad-cliff,*13 Johns., 300; 4 Wend., 369, 374; *Parkhurstvs. Van Qortlandt,*1 Johns. Ch. R., 27A-281; *Brayton vs. Jones, 5*Wis., 117. 4. Evans’s testimony as to tbe consideration for tbe land thus turned out to S. S. Benedict, is entirely insufficient. He was not present at tbe alleged settlement between Nicbols and H. S. Benedict — saw.no deed given or receipt passed, and all be knows was from conversation with *262those parties. His evidence is mere hearsay. If any parol evidence on that subject was admissible, S. S. Benedict and Nichols were the only proper witnesses, and *Horner*was entitled to a cross examination of them under oath. *Persons vs. Burdick,*6 Wis., 63, 66; *Jackson vs.*Richards, 6 Cow., 617-623; *Hwrd vs. West,*7 id., 752; *Worrall vs. Parmelee,*1 Corns., 521; *Paige vs. Cagwin,*7 Hill, 361; *Stark vs. Boswell,*6 id., 405; *Jones vs. Methodist*Society, 21 Barb., 174; *Bennett vs.*Eastman, 6 Wis., 239, 240; *Bailey vs. Wakeman,*2 Denio, 220-4; same case, 2 Hill, 279 ; *Brown vs. Lusk,*4 Yerg., 210; *Doe vs. Arkwright,*5 Carr. & Payne, 575; 1 Grreenl. Ev., §§ 108, 109, 111, 114, 191.

January 2.

*By the Court,*

Dixoít, C. J.

Conceding that the conveyance from Spencer S. Benedict and wife and Walter M. Boekwell and wife to the appellant, is not void for uncertainty, but that it falls within that class of ambiguities, sometimes called patent, which may be explained by parol evidence (see 2 Phillips on Evidence, Cowen & Hill’s and Edwards’ notes, page 747, note 575, and cases there cited, and 1 Grreenleaf on Ev., §§ 297-300) pand that the admissions of Spencer S. Benedict, made at the time he acquired the title to the land in question, as to the manner in which he procured it and the consideration which was paid, were properly received in evidence (1 Grreenl. Ev., § 189), neither of which propositions can be said to be entirely rmsustained by principle or authority, still I do not think that the testimony introduced sufficiently establishes that the premises in suit are within the general description contained in the deed. In all such cases, where the property conveyed is described on the face of the deed, by terms which in themselves are doubtful and inadequate to its perfect designation, but which refer to extrinsic facts and circumstances for the ascertainment and completion of the meaning, the burden of showing such facts and circmstances is with the party claiming the benefit of such deed. And this he must do by proof which fairly preponderates in his favor, and which leaves nothing to rest upon conjecture or mere probability of fact. The case of the appellant in this respect depends upon the testi*263mony of a single witness, wbo neither knows nor pretends to know anything about the facts themselves. The which he gives is of a kind which is always to be received with the greatest caution and scrutiny. He professes to testify only to the oral admissions of Spencer S. Benedict, the person through whom both parties claim title. His evidence is given under circumstances of great disadvantage. The conversation took place some fourteen years before the trial, and at a time and in a manner which were not calculated to fix his attention or create a lasting impression upon his mind. The tenor of his testimony shows this. He speaks doubtingly, as if under an effort to recall something which had long since passed from his memory. If therefore he had testified to an admission by Spencer S. Benedict, it is very doubtful whether it ought to turn the scale in favor of the appellant. But the great difficulty is that, conceding to his testimony all the weight which might be given to any, it does not show that Spencer S. Benedict ever made the admission claimed. All of it which can really be said to be pertinent and material, is contained in his answer to the last cross-interrogatory. In that answer he says, that in the summer of 1846, he thinks, S. S. Benedict came to Kenosha to settle an indebtedness of Mr. Nichols to the firms of Lewis Benedict & Son and Lewis Benedict & Co., and as he was consulted by Nichols and Benedict about the settlement and the deeding of the property in question, he derived his knowledge of the facts in that way and from no other source. He saw no deeds given or receipts pássed. In answer to previous questions, he disclaims all actual knowledge of any transactions between Nichols and either of the firms. It is very manifest that this language does not amount to proof of an admission by Spencer S. Benedict as to the consideration which he paid for the land. The witness nowhere testifies positively and directly that he conversed with Benedict, or that Benedict told him anything about the matter. For aught that appears, he may have received his information entirely from Nichols, who is mentioned in the same connection. He does not tell us who spoke or what was said, or whether the parties consulted him together or separately. *264®very^n& and uncertainty. Upon this evidence we think it impossible for any court to pronounce that Spencer S. Benedict ever made a declaration upon the subject, and therefore mast conclude that the land in dispute is not within the operation of the deed.

As relates to the form of the judgment, or the power of the court to grant to the respondent the affirmative relief to which it deemed him entitled, it is clearly authorized by the statute. Sec..26, chap. 132, E. S. Its language is applicable to all issues whether joined before or after the adoption of the Code. The fact that such relief was not asked does not vary the question. The facts constituting the foundation for it are sufficiently stated, which seems to be all that is now required by law. See sections 9 and 10, chapter 125, E. S. The practice of demanding such relief in proper cases, is undoubtedly a good one, and may with propriety be continued, but the statute does not make it essential.

Judgment affirmed.