Wiesmann v. Donald, 125 Wis. 600.

DODGE, J. The absence of any bill of exceptions informing us what evidence was presented to the trial court precludes us from reviewing the question of plaintiff's sanity as a fact, and from considering the validity of the county judge's order, earnestly argued by him. By reason of this omission the case must be considered as if his insanity had been fully proved.

The drastic action of the trial court in dismissing plaintiff's complaint upon a fully admitted cause of action because of his mental incompetency, thereby, for the time at least, relieving the defendant from payment of money which he, by not denying, admitted he owed to the plaintiff, seems to be in complete negation of the duty owed by all courts to protect and care for the rights of the mentally incompetent. We are given very little aid, either by the record or by the respondent's brief, in ascertaining the reasons which led to such action. The respondent informs us, without citation of authority, that "the principle that an insane person cannot appear as plaintiff and prosecute a case in his own behalf is elementary." Perhaps he told the circuit court the same thing, and that court believed him. This proposition has, however, been directly negatived by this court in Menz v. Beebe, 95 Wis. 383, 70 N. W. 468, where it was held that no obstacle exists, either by common law or under our statute, to the maintenance of an action by an incompetent person. Among the supporting authorities cited in that case was Chicago & P. R. Co. v. Munger, 78 Ill. 300, where it is pertinently said:

"The note was due and unpaid, and somebody was entitled to sue upon it and enforce its collection. If appellee [the incompetent] was not, who was ?"

Again, in Rankin v. Warner, 2 Lea (Tenn.) 302, it is said: "The law mainly designs to protect the weak and dependent, and if the courts, seeing a suitor has rights or property entitled to their consideration and judgment, turn him out.

Wiesmann v. Donald, 125 Wis. 600.

because no one will or does assume the role of guardian or next friend for him, they will certainly be guilty of a strange perversion of the object of their creation."

The common-law right of a lunatic to maintain a suit was declared as long ago as Lord Coke's time, in Beverley's Case, 2 Coke's Rep. pt. 4, 568. And the distinction in this respect between an incompetent and an infant has always been recognized (1 Freem. Judgm. § 152), and is fully preserved in our own statutes, which provide (sec. 2613, Stats. 1898) that an infant must appear by guardian, but omit any such requirement with reference to the insane plaintiff. The rule in Menz v. Beebe is supported not only by the authorities there cited, but also by Allen v. Ranson, 44 Mo. 263; Rankin v. Warner, supra; Amos v. Taylor, 2 Brev. (S. C.) 20; Stigers v. Brent, 50 Md. 214; Looby v. Redmond, 66 Conn. 444, 34 Atl. 102; Skinner v. Tibbitts, 13 Civ. Proc. R. (N. Y.) 370.

Our statutes evince a policy to confer upon courts full power to protect the interests of insane persons who are in court without the protection of their guardians, by authoriz ing that in any case when a party shall appear to be insane the court or judge may appoint a guardian for the action, as the case may require, and by requiring that, in case of a defendant, he shall be protected by a guardian. Sec. 2615, Stats. 1898. The proper course for courts to pursue when it becomes apparent that a plaintiff, by reason of his insanity, cannot safely protect his rights in the litigation, is illustrated by Wiesmann v. Daniels, 114 Wis. 240, 90 N. W. 162, where, upon suggestion of such a situation, this court, instead of dismissing the case and denying all hearing to the unfortunate, appointed a guardian ad litem and directed the case to proceed. For the reasons above stated it is obvious that the circuit court erred, to the grievous prejudice of the plaintiff, in dismissing this action, and that the judgment to that effect must be reversed. Since, however, the action was at issue

by the filing of what the defendant had denominated his answer, had been duly noticed for trial, and the plaintiff moved for judgment upon that answer, no reason is apparent for refusing him such relief. The answer contained no word of denial of any of the allegations of the complaint, and it was the duty of the court in that situation to render judgment accordingly, subject to its discretionary power to allow defendant to plead to the merits if he could show sufficient excuse for his neglect to do so, and upon terms such as would compensate the plaintiff for the delay and the repetition for his preparation for trial. We have determined to leave that situation still open, so that such discretion may still be exercised, although upon the record as it now stands plaintiff would be entitled to judgment for the amount demanded in his complaint.

By the Court.-Judgment reversed, and cause remanded for further proceedings according to law.

PRITCHARD, Appellant, vs. LEWIS and another, Respondents.

September 14-October 3, 1905.

Deeds: Construction: Exception or reservation? Evidence: Ambiguity: Adverse possession: Cloud on title.

1. A deed which in express terms excepts and reserves "a strip of land two rods in width off the north side thereof, to be used as a right of way," imports that the fee was intended to be reserved.

2. A marked distinction exists between the terms "exception" and "reservation" as used in deeds; the distinction being that a reservation is something taken back from the thing granted, while an exception is some part of the estate not granted. 3. In a deed to P. (being one of two contemporaneous deeds covering the same premises), after describing the land conveyed by metes and bounds, was the clause: "Being the same premises described as a right of way . . . reserved by said parties of

Pritchard v. Lewis, 125 Wis. 604.

the first part in a deed this day executed to L." There was also excepted and reserved to the grantor the timber situated thereon and the right to enter and remove the same. The deed to L., after describing a larger tract which included the lands described in P.'s deed, contained the following: "Excepting and reserving from the above described premises a strip of land .. to be used as a right of way." Held:

(1) Sufficient ambiguity existed to warrant the admission of competent testimony to aid in the interpretation of the deeds.

(2) Considering the deeds in the light of the competent testimony produced, the grantor reserved the fee from the conveyance to L. and conveyed that fee to P.

4. In such case it appeared from the deeds that P.'s ownership was further subject to L.'s right to fence the two-rod strip into his inclosure, on condition that he maintain gates for the use of the grantor, his heirs and assigns. Thereafter the title to the lands of L., including the strip in controversy, came to defendant by a conveyance describing the whole by metes and bounds, which was recorded more than ten years before the action was commenced. Held, under the evidence, stated in the opinion, that the defendant's occupation, although the strip in question was inclosed with his other lands, was consistent with the ownership of plaintiff (P.'s grantee) and not in hostility to her.

5. In such case a mortgage, including in its description the strip in question, executed by the defendant, constitutes a cloud on plaintiff's title, from which she is entitled to be relieved.

APPEAL from a judgment of the circuit court for Racine county: E. B. BELDEN, Circuit Judge. Reversed.

This is an action to remove a cloud from title to real estate, created by mortgage from defendant Lewis and wife to defendant Adams. Plaintiff claims through deed from the common grantors, Evan Jones and wife, to Owen P. Pritchard, and defendant Lewis through deed from said Jones and wife to John G. Lewis. The deeds are as follows:

"This indenture, made this 11th day of November, in the year of our Lord one thousand eight hundred and seventytwo, between Evan Jones, of Racine county, Wisconsin, and Ellen, his wife, parties of the first part, and Owen P. Pritchard, of the same place, party of the second part,

Pritchard v. Lewis, 125 Wis. 604.

"Witnesseth, that the said parties of the first part, for and in consideration of the sum of fifty dollars, to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, convey, and confirm, unto the said party of the second part, and to his heirs and assigns, forever, all that certain piece or parcel of land situate in said county of Racine, known as a part of the northeast quarter of section number thirty-six (36), in township number three (3) north, of range twenty-two (22) east, bounded as follows:

"Begin in the west line of said quarter section, sixty (60) rods south of the northwest corner thereof, run thence east eighty (80) rods, thence south two (2) rods, thence west eighty (80) rods to the west line of said quarter, and then north two (2) rods to beginning, containing one acre, and being the same premises described as a right of way two (2) rods wide reserved by said parties of the first part in a deed this day executed by them to one John G. Lewis. Excepting and reserving from above-described premises all the timber thereon situated, with the right to said party of the first part to go upon said land and remove said timber for the term of ten years.

"Together with all and singular the hereditaments and appurtenances thereto in any wise appertaining, and all the estate, right, title, possession, claim, and demand, in law or in equity, of the said parties of the first part therein and thereto.

"To have and to hold the same unto said party of the second part, his heirs and assigns, to his and their sole use, forever. And the said Evan Jones, one of the parties of the first part, for himself, his heirs, executors, and administrators, doth hereby covenant with the said party of the second part, his heirs, executors, administrators, and assigns, that at the time of the delivery of these presents he is well seised of the above-granted premises as of an indefeasible estate of inheritance in fee simple, that the same are free and clear from all liens and incumbrances whatever, and that the same in the quiet and peaceable possession and enjoyment of the said party of the second part, his heirs and assigns, forever,