Burdick v. Briggs

11 Wis. 126 | Wis. | 1860

By the Court,

Paine, J.

This action was brought to foreclose a mortgage given to secure two notes, amounting to $1,336, on one of which there was an indorsement of $100. The notes and mortgage were given to secure the payment of the purchase money of the land, which was sold by the plaintiff to the defendant, Harvey Briggs, and conveyed at. his request, to his wife. For a part of the land the plaintiff had at the time of the sale, a contract for the conveyance, and he procured a deed to be made directly to Mrs. Briggs, and also gave her a quit claim of that part to which the title was in him. The notes and mortgage were given back, and the plaintiff at the same time executed and delivered to the defendants an agreement not to collect the notes until he had given a warranty deed, and perfected the title in Frances L. Briggs. These facts are all set forth in the complaint, and it is further averred, that the object of this agreement was to require the plaintiff to extinguish the right of dower of his wife, who did not sign the deed, and with whom he had then a divorce suit pending. And it is also alleged that the plaintiff did, before the bringing of the suit, tender a good and sufficient warranty deed of the premises, and that he had extinguished the dower of his wife by a decree divorcing them from the bond of matrimony, and that by these proceedings a perfect title had become vested in Frances L. Briggs.

The answers deny the execution of the mortgage described in the complaint, which denial however seems to have been based upon some variance in the date of its record. This the court properly disregarded at the trial, as it was very clear that the defendants were not and could not have been misled by it. And they also deny that the plaintiff had tendered the warranty deed, or had perfected the title as he had agreed.

On the trial the defendants objected to any proof under the complaint, on the ground that it did not set forth facts sufficient to constitute a cause of action. This objection was based upon the fact, that it appeared from the complaint that the plaintiif was to perfect the title, yet only claimed to have extinguished his wife’s dower by obtaining a decree of divorce and a stipulation between them to that effect, which it was claimed was insufficient. But independent of the stipulation, it seems that a divorce from the bond of matrimony cuts off the wife’s right of dower. Bishop on Marriage and Divorce, §§ 661, 662; Shelford on Marriage and Divorce, 478. There is also a provision in the statute, which was in the old Rev. Stat., chap. 69, §25, that a divorce should not cut off the wife’s dower, except where it occurred through the husband’s being sentenced to imprisonment for life, on account of his adultery, or of his being sentenced to imprisonment for a term of three years or more. The complaint does not state for what cause this divorce was rendered. The pleading might have been more specific if it had so stated. But we think it is an allegation of a fact, that the right of dower was extinguished by the decree. If it was denied, it would have to be established by proof of a decree for such a cause as would have that effect. But when the allegation is made in its general form and it is not denied, nor any motion made to render it more definite, we consider it a sufficient allegation that the dower was cut off by the decree, inasmuch as in law it could be so cut off. It is like a general allegation that a conveyance was made by deed. If some deeds would be sufficient to make it, and others not, if no objection was taken to the general form of the allegation until the trial, and that by way substantially of a demurrer, we think it ought not to prevail.

A preliminary question was raised as to whether the evidence is before this court, the bill of exceptions not having been signed by the judge. That question has been several times suggested, but it has not been necessary to determine it, until it was presented in this case. Under the old practice a bill of exceptions was always authenticated by at least the signature of the judge, and this method left little room for doubt or uncertainty. But section 16, chapter 132, R. S., 1858, which was a part of the code, provides that exceptions may be stated in a case, or separately, “ but need not be sealed or signed.” It provides also that they shall be “ settled as provided by the rules of court.” Rule 15, adopted after the code allows thirty days after notice of the decision, to prepare and serve exceptions. Rule 16 provides that if no amendments are served within twenty days after the service of the exceptions, they shall be deemed assented to as served. The rule alone, without the provision of the statute, might perhaps be fairly construed to mean that if no amendments were served, the judge, on proof of that fact, might sign the bill without further notice to the other party. But taken in connection with the express provision that the exceptions “need not be signed or sealed;” rve cannot say, without disregarding this provision, that the signature of the judge is indispensable. And such was the decision of the New York court of appeals in Zabriskie vs. Smithy 1 Kern., 616, where it was held that it was not necessary that they should be signed, or authenticated by the judge; this being so, it follows that the party rvho has served his exceptions, has, if no amendments are served within the time allowed, the right to file his exceptions, which became settled by being deemed assented to under the rule. It is only where amendments are served that a resort to the judge became necessary. But in all cases where the party files his exceptions in this way, he should file the proof of service, and that no amendments had been served. The record would then show, beyond any question, that they were properly a part of the record.

In this case the affidavit shows only the proper service of the exceptions, but as there was no pretence by the counsel on the other side that any amendments were served, we shall consider the exceptions as properly a part of the record. This point is only important in this case, as by section 12, chap. 264, of the laws of the last session it is expressly provided that the judge shall sign the exceptions, a fact which has fallen under our observation since the foregoing part of this opinion was written.

A number of objections were made by the defendants to the admissibility of evidence. But we think them all unfounded. The evidence offered tended to show a good title in Frances L. Briggs, either by tracing the actual chain of title, or by showing that the incumbrances had been paid and discharged. The certificate of the register of the land office was admissible by a positive statute, and we can see no substance in any of the other objections. We think from the evidence upon which we have to pass, this being an equity case, that the allegations of the complaint which were denied by the answers, were sufficiently established, and that the plaintiff showed his right to collect the notes according to the agreement.

The judgment is affirmed with costs.

Dixon, C. J., having been of counsel, took no part in the decision of this case.

Note. — In Ricker vs. Scofield, 6 Wis,, 367, which was a bill in chancory for specific performance, the attorney for the defendant prepared a bill of exceptions, and served it upon the plaintiff’s attorney, and after waiting eight days, as required by rules 19 and 20, 0. R.., he filed the same with the clerk of the circuit court, without procuring the signature of the judge, and it was sent up with the appeal papers. The supreme court held that such a paper could not be considered as a bill of exceptions.

In Townsend et al. vs. Bank of Racine, 7 Wis., 185, the judgment was rendered on the 5th of January, 1858. On the 6th of March the plaintiffs, against whom the judgment was rendered, took their appeal to the supreme oourt; and on the 19th of March they served a copy of the bill of exceptions upon the defendant’s! attorney, without any notioe accompanying it. The attorneys for the defendant, on the same day, wrote on the copy served as follows, and returned it: “ This paper is returned to the plaintiff’s attorney ; and the defendant’s attorneys refuse to aocept the same, for the reason it was served too late to make and serve a bill of exceptions; and an appeal of said cause was brought aud was pending prior to the service of this paper, and tho defendant’s attorneys had received notice of such appeal.” No amendments having been received to the hill, the plaintiff’s attorney, on the 2d of April, sent the bill to the circuit judge by mail, with proof of the service on the defendant’s attorneys. On the 23d of April the judge indorsed on the bill the following certificate: <‘I certify that the foregoing hill of exceptions was presented to me on. the 2d of April, and remained in my hands until this day, when I signed it without reading it.

April 23, 1858. J. M. KEEP.”

The bill so signed was filed on the 11th of May, 1S58. The appeal papers certified on the 14th of May, were filed on the 15th of June, 1S58, in the supreme court; and on the next day tho defendant’s attorneys moved the court, to strike out the bill of exceptions from the return of the circuit court, "for the following reasons: 1. No bill of exceptions was served in this case upon the defendants' attorneys, within the time allowed by the rules of the court. 2. No bill of exceptions was filed within ten days after settlement. 3. No notice of the settlement of any bill was ever served upon the defendant’s attorneys. And 4. No bill of exceptions was served upon defendant’s attorneys, until after the case had been removed to the supreme court.”

The attorney for tho plaintiffs, in opposition to this motion, made an affidavit showing, among other things, that from the 6th or 7th of April to the first of May, he was confined to his room by sickness, and unable to attend to any business; that the bill of exceptions had been given to him in person by the judge, and he was unable to state whether it was received more or less than ten days before the 11th of May; and that the delay of filing the bill in the clerk’s office,was oocaasioned by the sickness of the attorney, and his inability to attend to business.

This motion was argued by the attorneys of the respective parties, and denied by the court, on the 19th of June, 1858. The court held that the bill of exceptions had been well settled; that the failure to file the same in time, if there had been any failure, was sufficiently accounted for, and was excusable.

See also the case of State vs. Gale, 7 Wis., 673.