Evans v. Sprague

| Wis. | Jun 15, 1872

Dixon, C. J.

"We need not stop to consider wbether the mortgagor, Dongal, ceased to be a resident of the town of Reeds-bnrg under the circumstance supposed in the first instruction asked bj the defendant. Tbe defendant appeals, and that point was ruled in bis favor by the giving of the instruction. ISTei-ther need we consider the point that if the mortgagor was not a resident of that town, then the mortgage was not properly filed in the office of the clerk thereof. Tbe court so charged in the language of the second request to instruct, made by the defendant, which was also granted. In view of the charge of the court and of the evidence as shown by the bill of exceptions, we must suppose that the jury found that the possession of the mortgaged property was delivered to and retained by the mortgagee, the plaintiff in this action, and, as charged in the second instruction given at the request of the defendant, that the plaintiff’s possession was clear, unequivocal and exclusive. Tbe record seems, therefore, to present but two exceptions for our consideration, the one as to the admissibility of the certified copy of the mortgage from the office of the clerk of the town of Reedsburg, and the other as to' the sufficiency of the evidence to show an actual and continued change of the possession of the Mortgaged property, after the execution and delivery of the mortgage. Tbe latter arises upon the motion for a new trial, because the verdict was against evidence and contrary to the instructions of the court.

Supposing the mortgaged property was not in the town of Reedsburg at the time the mortgage was executed, so as to make the filing of the mortgage in that town proper under that clause of the statute, (R. S. Ch. 107, § 9, 2 Tay. Sts. 1257, § 9,) and supposing also that the mortgagor was not a resident of that town, according to the rules of law laid down by the court for the guidance of the jury in that respect, both of which facts seem very clearly to have been established in evidence at the time the certified copy of the mortgage was offered, then it may be looted upon as extremely doubtful whether the copy of the mortgage was properly received in evidence. If the mortgage was not properly on file in bis office, it would seem the clerk bad no authority to certify a copy of it so as to make it evidence in a court of justice. But it is unnecessary to decide this question, since no proper objection to the admission of the copy appears to have been taken. The objection, to have been sufficient, should have been specific, pointing out the very ground or reason upon which its inadmissibility depended. It was a mere general objection, specifying no grounds or reason at all for rejecting the copy. The real grounds now urged may have been unknown to the court and to the opposite party. The question presented is, therefore, altogether like that involved in Best vs. Davis, 18 Wis. 386" court="Wis." date_filed="1864-06-15" href="https://app.midpage.ai/document/best-v-davis-6599191?utm_source=webapp" opinion_id="6599191">18 Wis. 386, where the objection to the introduction of the copy of the .notice of lis pendens was held too vague and uncertain to raise any question of its admissibility in this court. If the true ground of objection bad been stated, the plaintiff might have obviated it by the production of the original mortgage at the trial. The objection, to have been sufficient, should have been so made as to have given the plaintiff this opportunity, or opportunity to have established the admissibility of the copy by further proof, and, because it was not so made, it is not available to the defendant in this court.

The other question seems to us a very plain one. The evidence before the jury was such that we think they might well have found that change of possession or delivery of the mortgaged property to and retention of it by the mortgagee, which the law required. The possession of the plaintiff’s agent, William Dougal, became her possession for that purpose, and the evidence that be bad and retained the colts in bis possession and under bis control, was certainly such that under well set-tied rules upon the subject, this court would not be justified in setting aside the verdict as for want of evidence to support it. The judgment must therefore be affirmed.

By the Court. — Judgment affirmed.