Eiden v. Eiden

41 Wis. 460 | Wis. | 1877

LyoN, J.

If the deed of the defendants to the plaintiff was delivered by them to the, latter, the title to the land therein described vested in him, and he is entitled to the specific relief demanded in the complaint. If not so delivered, the action fails, and the judgment appealed from should not be disturbed. Hence the question of such delivery is a controlling one in the case.

The plaintiff testified on the trial, that he was not present when the deed Avas drawn and signed, but that, in the evening of that day, the justice who drew it and before whom it was acknowledged, brought it to his store and delivered it to him, and he paid the justice his fees therefor; that, having no convenient place to keep it, he took it to his father’s house the same evening, and gave it to his mother (the defendant Mary) for safe keeping, and she put it away in a trunk; and that, about six months after, he saw the deed in such trunk, and has not seen it since.

A witness for plaintiff (his father-in-law) testified that he was present when the deed was made, and heard the defendant Nicholas tell the justice to give the boys their deeds to the land, and that he saw the justice put the deed to the plaintiff in his pocket and go away with it. Another witness testified that he saw the plaintiff give the deed to his mother, and heard him tell her to take care of it.

The justice was called as a witness on behalf of the plaintiff, and testified that he could not remember whether he gave the deed to plaintiff' or not, but testified positively that the defendant Nicholas did not direct him to do so.

Both defendants and their son Nicholas testified that the deed was not taken from the house by the justice, but was immediately placed in the trunk by Mrs. Eiclen, by direction of her husband. The defendant Nicholas testified that, being on the point of starting for Europe, he executed those deeds so that his sons might not be wronged in case any accident might befall him, but without any intention of presently passing the title to the land to his boys; that he never authorized the delivery of the deed to the plaintiff; that on his return from Europe in the following spring, he found that the plaintiff wTas disobedient to his commands, and he thereupon took the deed to the plaintiff from the trunk and destroyed it, and delivered the other deed to his other sons, who were more obedient. This testimony is corroborated by that of his wife and his son Nicholas. There was some other testimony in the case bearing upon the controverted question, but not of sufficient importance to be entitled to special mention.

The burden is upon the plaintiff to prove, by a preponderance of the evidence, that the deed was delivered to him by the defendants, or by their! direction. If he ever had the deed, he received it from the justice. But that would be no legal delivery unless the justice was authorized thereto by the grantors, or at least by the defendant Nicholas. To prove such authority the plaintiff has but one witness, his father-in-law; while the authority is positively denied by the justice and both defendants, and inferentially by Nicholas, Jr. !

Such being the evidence, it is quite impossible for us to say that it preponderates in favor of the theory that the justice was authorized to make delivery of the deed. Moreover, it would be difficult to say from the proofs that the plaintiff ever had the deed in his possession or under his control.

The following question was put to the plaintiff in his own behalf, when he was testifying in the case: “State howjlong you worked for your father, after you became twenty-one years of age, before the deed was given to you.” The court sustained an objection to the question, and the ruling is assigned as error. It is stated in the brief of counsel for the plaintiff, that the object of the question was to show that there was a valuable consideration paid by the plaintiff for the land. When the question was put, the plaintiff had just testified that his father gave him the land; and there is nothing in the evidence showing or tending to show that the plaintiff paid a valuable consideration for it. And were the facts otherwise, it is of no importance. Were this an action to compel the defendants to convey land which the plaintiff had bought and paid for, but which they refused to convey, the testimony called for by the question as explained would be pertinent to the issue. But this is an action of a very different nature. To recover, the plaintiff must show, not only that he is in actual possession of the land, but that he has the legal title thereto. To establish his legal title, he must show that the deed under which he claims was delivered to him. Proof that his father owed him for work does not prove, or tend to prove, such delivery. Hence, the testimony called for by the question is immaterial, and there is no error in the ruling.

We find nothing in the record to justify a reversal of the judgment.

By the Court. — Judgment affirmed.