Fay v. Rankin

47 Wis. 400 | Wis. | 1879

LyoN, J.

The learned circuit judge instructed the jury, in substance, that in law the conveyance executed by Hammond to the plaintiff vested in the latter the right to the possession of the farm conveyed, as against Hammond and his creditors, and tlie right to cultivate the farm as he saw fit, and to take from it for his own use the crops he might raise thereon; that, if the plaintiff took exclusive possession of the farm, and raised the crops in controversy for his own exclusive use and ■ benefit, such crops were not liable to seizure on executions against Hammond; but that, if there was an understanding between the plaintiff and Hammond that the former should occupy for the benefit of the latter, and that the crops raised on the farm should be raised for the use and benefit of Hammond, the crops belonged to Hammond and were subject to seizure on execution against him.

After the jury had retired to consider their verdict, they returned into court for further instructions; whereupon the learned judge restated the issue in the following language:

“ I have instructed you that you have nothing whatever to do with the title of that land. I have instructed you distinctly that under and by virtue of this deed Mr. Fay had the right to the possession of this land, so that the right to possession is not a question with which you have anything to do. You are to assume that he had the right to the possession. He had a deed of conveyance of the land from Hammond, the man who held the fee; under and by virtue of that deed, Fay had the right to possession. The question I submitted to you was, whether or not he, in his own right, for himself and at his own expense, went on and cultivated this crop upon the land during the season of 1875; or whether there was some arrangement between him and Hammond, 'by which the possession in fact was to be Hammond’s all the while, and the crop that might be raised upon it was to be the property of Hammond. But the question as respects the legal title, I have instructed you, was not drawn in controversy here. It is simply the question of possession.” Upon this issue the cause was tried and determined.

After the plaintiff had introduced evidence tending to prove that he was in the exclusive possession of the farm, and raised. the crops in controversy thereon for his own exclusive use and benefit, the defendants were allowed to show, by one Nichols, who had been employed by the plaintiff to work on the farm, that in the spring of 1875 Hammond told the witness not to borrow tools of a certain neighbor, but that if anything was wanted on the farm, he (Hammond) would go to Milwaukee and get it. Also, that Hammond came by the farm where witness was plowing, and gave him directions concerning the use of the team, saying that he had an interest in the team. The plaintiff was not present at either of these conversations. The admission of this evidence is assigned as error. The learned counsel for the defendants argued that the evidence was admissible on the principle that the declarations of a conspirator are admissible against his co-conspirators, although made in their absence; or, at least, that they were admissible to show the fraudulent intention of Hammond. This argument assumes that the questions of conspiracy and fraudulent intention are involved in the issue, as submitted to the jury; but we think they are not. Under the instructions given to the jury, if the farm was in the exclusive possession of the plaintiff) and was carried on, and the crops in controversy grown, for his sole use and benefit, he was entitled to recover; and it is quite immaterial whether it was or not so possessed and carried on for the purpose and with the intention on his part to defraud the creditors of Hammond. On the other hand, if the farm was carried on and the crops grown for the use and benefit of Hammond, in whole or in part, under the instructions, such crops were subject to seizure on execution against Hammond, even though the transactions between him and the plaintiff were entirely honest, and neither of them intended to delay or defraud the creditors of Plammond. Hence we are unable to hold the evidence admissible on the grounds urged by counsel.

Were this a contest for the crops between the plaintiff and Hammond, it is clear that the latter would not be allowed to prove his own statements or declarations, made in the absence of the plaintiff, to sustain his claim to the property. The defendants claim through Hammond. Their right to hold the property seized depends upon Hammond’s ownership of it. "Whether he is the owner is the precise issue which has been tried — not whether he has made a fraudulent disposition of the property.

We are unable to perceive why a different rule of evidence should be applied here than would be applied were Hammond, instead of his creditors, a party to the action claiming the property. Moreover, were the question of fraudulent intent involved in the issue, we should hesitate to hold that the declarations of Hammond that he had an interest in the property, made in the absence of the plaintiff, and while the latter was ostensibly in possession of and carrying on the farm, and which were no part of the res gestae, are admissible to prove the fraudulent intention of Hammond. It would seem that to admit such evidence would be to enable any grantor or vendor to endanger the title of his grantee or vendee, at any time, by loose declarations or statements not made under the sanctions of an oath, which cannot be subjected to the scrutiny of a cross-examination, and which may have been maliciously made for the express purpose of defeating the title which he had conveyed.

We conclude that the testimony of the statements of Hammond to Uichols was improperly admitted.

It is evident that this testimony may have had influence with the jury in determining (as they did) that the crops in controversy were raised for the use and benefit of Hammond. The probability that it had such influence is strengthened by the fact that, when the jury returned into court for further instructions, the testimony of Uichols was read to them at their request, after which they agreed on a verdict for the defendants. The error in admitting the testimony is therefore fatal to the judgment.

Whether the court erred in holding that the conveyance by Hammond to the plaintiff vested in the latter the right to the possession of the farm, as against the creditors of Hammond, is a question not presented by this appeal, and we do not determine it.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.