44 Wis. 72 | Wis. | 1878
Lead Opinion
The evidence in this case was very conflicting, and imposed upon the circuit court the duty of determining its credibility and weight, by tests which can only be applied by the court which has the advantage of hearing the testimony from the lips of witnesses, arid of observing their manner and appearance upon the stand. It would be a most unsafe rule to determine the weight and preponderance of evidence in any case by the disparity in the number of witnesses, and by the test only of their numerical majority. It is the settled practice of this court not to disturb the findings of the circuit court upon questions of fact, except in cases where the preponderance of the evidence is most clearly against them; and
The only question, then, to be determined here upon this appeal is, Do the findings of fact by the circuit judge justify his conclusions of law?
First. As to the certainty of the terms of the contract, there seems to be no cause of objection, except as to the price to be paid for the lot. The law, as laid down by the authorities, til at “ it is not necessary that the contract should determine the price in the first place” — that “it may appoint a way by which it is to be thereafter determined, in which case the contract is perfected only when the price has been so determined,” ■ — ■ would seem to apply to this contract. The price was to be determined by the sale of the first other lot in the vicinity, which sale had been made long before the commencement of the suit. Thereby the price of the lot in question became definite and certain. The admission of the appellant to the witness Peterson, that lots by the side of the one in question had been sold for the price of one hundred and twenty-five dollars, leaves no question open upon this point. To make the case of Gelston v. Sigmund, 27 Md., 334, applicable to this case, the contract here should have been, that Gunning-ham agreed to pay “ as much as any one else would pay ” for the very lot in question; and then this court might say, as it was said in that case, that “it could not be certainly ascertained, it was not practicable to know, how much another would give.” The other authorities cited by the learned counsel for the appellant are equally wide of application.
Second. That a tender of the purchase money, or the unpaid balance, should have been made, and a deed demanded, before suit, is sufficiently answered by the uncontradicted evidence that an adjustment of the amount paid and unpaid, and a conveyance, were demanded by Gunningham before suit,
Third. As to Mwrphy, the mortgagee, not having any notice of the contract of sale to Gunningham. Murphy's answer does not state that he did not know of Cunningham's full and open possession of the lot, but that he “ knew nothing of the alleged contract,” and “ had no knowledge of the possession of the said premises by said Gunningham under any claim of title or ownership of the said promises.” By the evidence in the case, it appears that his attention was specially called to the possession of Gunningham, and he had actual knowledge of it before taking the mortgage; and he should have inquired of Cunningham as to his right and title, and not have relied wholly upon the statements of Brown. The case of Wickes v. Lake, 25 Wis., 71, fully settles, for this state at least, the law of constructive notice by possession. We think the circuit court was warranted in finding the mortgage, taken under these circumstances, to be “ null and void.”
Foxwth. As to Murphy's right, in this case, to have the balance of the purchase money paid to him, and to be exempted from costs. Both Brown and MwrpJmj were found in the wrong, as to the lawful claims of Gunningham, and joined in an answer in denial of his rights; and we think it ■was discretionary with the circuit court to award the costs to the respondent against them jointly, and to set off the costs against the balance of the unpaid purchase money, pro tanto, which seems to have left a large balance of the'costs unpaid; and that this discretion was not abused.
The judgment must be affirmed, with costs.
Dissenting Opinion
I assent to the judgment against the appellant William Brown, the respondent’s vendor; but I cannot bring
In my judgment, the mortgagee was entitled to the balance unpaid of the purchase money. His lien covered all interest of his mortgagor, including the unpaid purchase money. And, as against him, the respondent was not entitled to offset it against the costs, especially as there is no suggestion anywhere in the case that the principal defendant, the respondent’s vendor, is insolvent.
In my judgment, also, it was an abuse of discretion to give costs against the mortgagee, who appears to have acted in good faith. I know of no rule, in cases of specific performance, which warrants a judgment for costs against an innocent intervening purchaser or mortgagee. The respondent’s right rested wholly in parol, except his mere possession. It may be that, under the circumstances, his possession was notice of some interest in the premises, sufficient to hold his parol right paramount to the mortgage. But this was, at most, constructive notice only. And the mortgagee appears not only to have had no actual notice of the respondent’s right, but to have believed that he had none. The mortgagee might have been more diligent in his inquiries, but that appears to have been in mere .ignorance, not at all in bad faith. The evidence tends to show that the respondent himself was sometimes doubtful of his right; and surely the mortgagee ought not to be punished, in costs to the respondent, for discrediting a right which the respondent himself seems to have sometimes discredited.
By the Cowrt. — The judgment of the circuit court is affirmed, with costs.
On motion for a rehearing, appellants’ counsel contended, 1. That to entitle a party to take a case out of the statute on
Respondent’s counsel, in reply, contended that, under the provision of our state constitution (art. YII, sec. 19) that “ the testimony in causes in equity shall be taken in like manner as in cases at law,” i. e., by examination of witnesses in open court (Brown v. Runals, 14 Wis., 693), the rule as to reversal in equity cases upon appeal to this court has properly been modified so as to resemble that adopted in cases at law. Ely v. Daily, 40 Wis., 52; Murphy v. Dunning, 30 id., 296; Bacon v. Bacon, 33 id., 147; Ingles v. Patterson, 36 id., 376. 2. That the statute of frauds does not control, because cases of part performance of parol contracts for purchase of lands are excepted by the terms of the statute itself. R. S. 1858, ch. 106, see. 10; Brandeis v. Neustadtl, 13 Wis., 152-3. 3. That the mere number of witnesses in such a case is not controlling,
The motion was denied.
