122 Wis. 387 | Wis. | 1904
The first assignment of error is upon direction of verdict for plaintiff as to the lumber cut from the so-called “Dresser forty.” We find the evidence undisputed that Dresser had a tax deed to this land fair on its face, and that he employed S. W. Blanding to enter thereon and cut this tim-
Eor the reasons above stated no error was committed in rejecting offered proof of the invalidity of plaintiff’s tax deed. That circumstance was immaterial, unless defendant could connect himself with the rights lender the adverse title, which he made no offer to do. Equally immaterial was the fact that
On the question of identification there is much confusion by reason of references to different places of piling and the like, which is well-nigh inextricable from the printed record. In this situation we must defer to the superior advantages which the trial judge enjoyed in understanding and applying the testimony, and conclude that the lumber seized on the writ in this action was only that coming from the three sources mentioned in the statement of facts; hence that, after deducting what came from the N. V. Blanding land and the Revord and Sousa logs, the remainder was the product of the Dresser forty. The property having been all delivered to plaintiff and disposed of, so that only values were material, identification of specific boards or piles was not essential.
The further ground of objection to this direction of verdict that defendant was entitled to a possessory lien for expenses of logging and sawing, cannot be entertained, for the reason that there is absolute absence of evidence to establish any lien. The claim is based upon Keystone L. Co. v. Kolman, 94 Wis. 465, 69 N. W. 165; S. C. 103 Wis. 300, 79 N. W. 224—where one cutting plaintiff’s trees and reducing them to lumber was held entitled to be reimbursed his expenses to the extent he had enhanced the value of the property, if plaintiff elected to adopt defendant’s acts and claim the lumber; but in that case the lumber had at all times been in defendant’s possession, and the decision was but the application of the common-law rule that he who rightfully improves another’s property has a lien to that extent upon it. To such lien, however, possession is essential. 1 Jones, Liens, § 20 et seq. As already stated, defendant never had any possession until he forcibly took the lumber by excluding plaintiff. The evidence is undisputed that Blanding cut the logs
2. The next error assigned is upon an instruction that, as •to the lumber obtained from the Nettie V. Blanding lands, the burden of proof was on the defendant to prove that his money, and not hers, purchased that land. The question of right of recovery of these logs rested upon the title to the lands, both Mrs. Blanding and the defendant claiming to have purchased them from the same owner; the only deed being made to Mrs. Blanding, and the payment therefor, so far as defendant was in any way connected therewith, being by S. W. Blanding’s draft for $75 upon one Sund, with whom he was in the habit of depositing money as a sort of banker, and with whom he had deposited, shortly prior to this draft, $250 of Lemma’s money and $100 of money the proceeds of certain lumber in which Lemma had no interest, and which was claimed to belong to Mrs. Blanding. We can discover no fallacy in the reasoning of the trial court to the effect that this deed prima facie conveyed legal title to Mrs. Blanding. If Lemma had any right in the land, it was due either to fraud on the part of S. W. Blanding, imputable to her by reason of his agency, or to a constructive trust resulting from the use of defendant’s money in purchasing the land. Surely, the burden of proof was upon the defendant ■either to establish fraud or to qualify the legal effect of the ■deed so as to impose a trust upon the grantee. S-. W. Bland-ing had a perfect right to buy land for his wife with her money or with his, except, perhaps, for rights of his credit:
A further complaint is that tbe instruction was rendered unduly emphatic, so as to impress tbe jury unfairly in favor of plaintiff’s claim, by reason of tbe fact that, having first charged that tbe burden of proof was upon tbe plaintiff, the-court recalled tbe jury and withdrew that instruction, and gave tbe contrary one, now complained of. If error is committed, doubtless tbe presumption of prejudice results and its absence must be made to clearly appear; but where the action of the trial court is not erroneous per se, and can become so only because tbe jury are misled, tbe latter fact is-against all presumption, and must be made to clearly appear. In recalling tbe jury to correct a mistake favorable to tbe appellant and to give them tbe true rule of law, tbe court of' course committed no error. Either be must do that, or be must declare tbe whole proceeding a mistrial. We know of no case where it has been held that tbe mere fact of recharging tbe jury to change an erroneous instruction previously-given has been held ground of reversal. Tbe trial court, upon motion for new trial, has bad an opportunity to pass-upon tbe question whether, in tbe procedure adopted, prejudice has so probably been suffered by appellant as to make tbe granting of a new trial proper, and has resolved that question against tbe appellant. In so doing be was within tbe field of discretion, and we cannot feel justified in saying that injury to appellant so clearly appears that .we must convict tbe court of abuse of bis discretion.
3.. The remaining error assigned is in refusing to tax costs'in favor of defendant because bis application for such taxation did not occur until more than sixty days after tbe rendition of tbe verdict. This conclusion of tbe court was reached by application of sec. 2894a, Stats. 1898, which provides that,
By the Court.- — That part of the judgment denying costs to defendant is reversed, and cause remanded with directions to tax defendant’s costs, and to modify the judgment