6 Wis. 85 | Wis. | 1858
By the Gowrt,
The pleadings in this case were all made up and settled before the code took effect, and while distinction in common law actions was kept up and observed by the courts. And although it may be difficult to give a very solid or satisfactory reason for the rule, yet we believe the authorities do declare that an action of covenant upon an instrument not under seal, though it may contain the statement “ signed, sealed and delivered,” cannot be sustained. The following cases seem to decide that point. Leroy vs. Beard 8 How., 451; Andrews and another vs. Heriot, 4 Cow., 508.
It was insisted upon the argument of the cause, by the counsel for the respondent, that the appellant was estopped from denying that the instrument was sealed, on the ground of having signed, acknowledged and delivered the same as a deed and having received the respondent’s money as part consideration for the land conveyed. We do not know of any case that has carried the doctrine of estoppel to this extent. The doctrine of estoppel is of course familiar to every lawyer, and it is not necessary to go into it. We do not think it can be so applied as to prevent the appellant from insisting that the action upon this instrument should have been assumpsit and not covenant.
Again, it was not contended that the court ought to presume that the instrument had a seal when executed, or in other words, presume a fact to exist which the court found did not exist. The court found that the instrument was not sealed, and this finding does away with all presumptions to the contrary. Although from the view which we have taken of this case, it does not become necessary to express an opinion upon other points made by the counsel for the appellant, it may not be improper for us to intimate, without giving our reasons therefor, that we are against the appellants upon those points.
Judgment reversed and new trial ordered,