Bush v. Maxwell

79 Wis. 114 | Wis. | 1891

Taylor, J.

The gist of the plaintiffs cause of action is founded upon the allegations in the complaint that the defendant, at the time he obtained the $900 from the plaintiff, did so by making false representations as to the validity of the mortgage he claimed to hold and own upon said lands, which the plaintiff had purchased from John E. Bush; and, in order to make out any cause of action against the defendant, he must not only' show that the mortgage of the defendant was not a valid and legal claim upon said lands, but he must further show that at the time he paid him the $900 in money and got his lands released from said mortgage, the defendant made false statements in regard to said mortgage for the purpose of induciug the plaintiff to pay the same, and that the plaintiff, relying upon such false statements, was induced to pay said mortgage.

After carefully considering the evidence in the record and the findings of the jury, we think the plaintiff has entirely failed to make out either of said propositions. The jury find by their answer to question 4 “that John E. Bush, on the 17th of March, 1881, signed the mortgage given by him to Emeline Maxwell, reciting a consideration of $600, conveying the premises in question.” By their ansAver to question 5 they find such mortgage was duly Avitnessed and acknoAAdedged on the day it bears date. By the answer to question 7 they say that the said John E. Bush signed it freely and voluntarily on his part. By their answer to question 9 they say that part of the consideration for said mortgage was intended as a gift to the defendant. By their answer to question 10 they say that the defendant did not make, execute, or forge the signature of John E. Bush to said mortgage, or cause it to be recorded in the register’s office with intent thereby to cheat and defraud the said J ohn E. Bush or his grantees of the premises described in said mortgage. The jury, by their answers to the above questions, have fully exonerated the defendant from practicing any fraud lipón John E. Bush in obtaining said mortgage from him, or of obtaining such mortgage for the purpose of defrauding the grantees of said John E. Bush.

These findings of fact seem to us to be well supported by the evidence. There is nothing which tends to contradict them, except the simple declaration of the old man, feeble mentally and physically, that he never gave the mortgage. That he executed the mortgage freely there can scarcely be a doubt under the evidence. Whether he fully comprehended the exact nature of the transaction may admit of question, and were he before the court asking to have the mortgage set aside either in whole or in part, there might be reasons founded on the evidence which would justify a court of equity in granting him relief as to some part of the mortgage debt. But he is not asking to avoid the mortgage; and,' as the evidence shows that no actual fraud was practiced by the defendant in obtaining the same, it will not be set aside in favor of his grantee, unless such grantee was induced to pay the same by false representations made by the defendant with the purpose of inducing such payment.

No question was submitted to the jury upon the point as to whether the defendant made any false representations to the plaintiff at the time he paid the mortgage, in order to induce him to make such payment. Though this seems to be the very gist of the plaintiff’s claim, the jury were not asked to pass upon it by their special verdict. As no exception was made by either party to tbe questions submitted to tbe jury, and no request to submit other questions, we cannot reverse tbe judgment for that cause, if upon an examination of tbe evidence in tbe case' it appears that there is no evidence which would sustain a finding in favor of tbe plaintiff upon that issue. Upon reading the evidence, we think it is clear that both the court and the parties concluded that no false representations were made to induce the defendant to pay the mortgage, unless it could be proved that the execution of the mortgage by John E. Bush had been procured by the fraud of the defendant; and so all the questions submitted were intended to determine the question of fraud on the part of the defendant in- procuring the mortgage from John E. Bush, and, having failed in that, the plaintiff necessarily failed in his action. A careful examination of the evidence shows that the plaintiff, knew when he paid the mortgage that it was given in great part by John E. Bush to the defendant as an intended gift, or, in fact, as a gift in part for future services and in part for an antecedent debt. The testimony upon this poiht is substantially as follows: The plaintiff testifies that all he' can remember the defendant told him about the mortgage to induce him t-o pay it was that the defendant said the mortgage was “ given partly as a present and partly for work done for John Bush.” In another place in his testimony he says: “We were talking about this mortgage, what it was given for, when it was given, and who was present when it was given. Mr. Maxwell said what it was-given for, but did not tell me about the facts and circumstances about giving it. He simply said it was a gift; that is what he said.” Plaintiff also testifies that “ he told Mamwell that he would settle his mortgage for $900, and it was-settled for that.” Mr. Stephens, a witness for plaintiff, and the person who drew the deeds from the plaintiff to Darius H. Bush, Sr., and William Buckly, and who assisted in the settlement with the defendant in regard to his mortgage, testified, among other things, “ that the defendant said that a part of the mortgage was made up for fees. I aslced, in the presence of the plaintiff and of Darius H. Bush, Sr., what that mortgage was made up of, and he said a part was for services he had performed, and the rest of it was a present he had given him.— I asked him if he would take out of the mortgage a reasonable fee- — -a fair compensation — for what he had done for the old gentleman, and give the rest over to the young man [meaning the plaintiff]; and he said he would not. That was about all the talk I had with him on this occasion.”

The evidence clearly shows that the plaintiff was sufficiently informed at the time he settled and paid the mortgage to the defendant as to what the mortgage was given for, and, if the plaintiff was of opinion that the consideration was not sufficient to justify the defendant in claiming the amount paid thereon, or if he desired to contest the validity of the mortgage as a gift from John E. Bush to the plaintiff, he should have refused to pay the same; but, having paid the same voluntarily, with full knowledge of all the facts, he cannot now recover the money back. That the plaintiff did not rely upon the want of a sufficient consideration for the mortgage, or upon its invalidity as a gift, is indicated by the facts alleged in the complaint. He knew what the defendant claimed “was the consideration for it when he paid it, as the evidence clearly shows, and in his complaint he seeks to avoid it, not so much because there was a want of consideration, but upon the ground that John E. Bush did not sign, execute or deliver the same; that said mortgage had no legal existence; and that it was made and signed without the knowledge or consent of .said John E. Bush, and without any consideration therefor. These most material facts of the complaint are wholly unproved, and the jury, upon all the evidence in answer to the questions above quoted, have found that they were untrue in fact. As the evidence in the case shows conclusively that the material issue made by the pleadings, and not submitted to the jury as a part of their special verdict, must, if submitted, have been found in favor of the defendant, this court will not reverse the judgment because such issue was not submitted to the jury. Upon the evidence, it is an undisputed fact in the case.

It is urged by the learned counsel for the appellant that the failure of the jury to answer some of the questions submitted to them is fatal to the judgment. We think a failure of the jury to answer questions submitted to them does not render the verdict insufficient to sustain the judgment unless the answer to such questions favorably to the party against whom the judgment is rendered would necessarily make such judgment erroneous. In the case at bar, an answer to the sixth and eighth questions submitted to them most favorably to the plaintiffs side of the case would not have changed the result upon the question as *to whether' the plaintiff or the defendant was entitled to judgment upon the verdict. The eleventh question was necessarily answered by the answer to the tenth question, and should only have been submitted for their answer if they answered the tenth question favorably to the plaintiff. An affirmative answer to the eleventh question would have been entirely inconsistent with the answers to the other questions in the verdict. The twelfth question, upon the subject of damages in favor of the plaintiff, must necessarily have been answered in the negative to be consistent with the answers given to the other questions submitted to them.

The exceptions taken to the instructions of the court to the jury were not well taken. The rule as to the burden of proof as to the fraud alleged in the complaint was correctly stated to the jury. Whether that rule would apply had John E. Bush brought an action to set aside the mortgage need not be decided in this case. We do not find any substantial errors in the record, and upon tbe evidence in the record the plaintiff could not recover in any view of the case.

By the Court.—The judgment of the circuit court is affirmed.