Goodvin v. Nichols

109 Wis. 672 | Wis. | 1901

Dodge, J.

The principal, if not the only seriously controverted, question is whether the bank corporation, acting by its directors, released its mortgage lien effectively, either •as against the mortgagor, Eice, or against his grantee, Bur-hans. That an equitable interest in land or a lien thereon may be released without writing is well established. Telford v. Frost, 76 Wis. 172; O'Donnell v. Brand, 85 Wis. 97; Goldsmith v. Darling, 92 Wis. 363; Slaughter v. Bernards, 97 Wis. 184; 1 Jones, Mortgages, § 974. From these authorities it would seem that mere words will not suffice, unless confirmed by the delivery up of the mortgage, or unless so acted on and carried into execution as to arouse ■equities demanding protection on the principle of estoppel. 'The transaction claimed to have effectually released the unrecorded mortgage from Eice to the bank is established •only by the testimony of Burhans, but the testimony is, save for one statement to be hereafter mentioned, wholly without contradiction, and, unless so improbable as to be beyond reasonable credence, must be taken as establishing the facts asserted, especially when the adverse party has failed to •call any of the numerous other participants, namely, the •directors of the bank. The single statement of Burhans which can be said to be in any wise in conflict is that Bice’s mortgage was delivered up to him (Burhans), so as to be physically separated from other papers belonging to the bank. This is claimed to be controverted by the fact that, when the cashier delivered to the assignee the securities, the Eice note and this mortgage were among them and were together. Plow soon after assignment this was done is not made to appear, nor whether in the interval the cashier had access to Burhans’s papers kept by him within the bank. It is in some measure affected by -the fact that the inventory made by the cashier under the law specified "the note, but made no reference to any mortgage security therefor.

Mr. Burhans’s testimony, then, if credible, establishes that ■■the exigencies of the situation required the clearing of title of the property in question in order to enable its improvement, in which the bank apparently was in some measure interested, and that the bank, acting by its directors, released to Mr. Rice this mortgage lien; that he took steps to-carry out the plan of the improvement, in the course of which the property was transferred to Burhans, and loans, for its improvement negotiated thereon. By the deed, Bur-hans assumed the incumbrances, and paid off such as there were other than this mortgage, which he always treated as. nonexistent, and Avhich the bank never suggested claim upon, from the transaction narrated, some time in 1890, up to the-service of their counterclaim in January, 1900, during all of which time Burhans had been apparently solvent and collectible, and the bank had been in such straits as ultimately to make assignment for its creditors. Such evidence seems, to fully satisfy the.rules above indicated for release of mortgage lien by word and acts, independently of consideration whether manual delivery up of the mortgage was made.. The agreement and purpose upon which the release was-made has been executed, both Rice and Burhans have acted on the faith of such release, so that the latter must suffer seriously if it be not held effective, and the subsequent conduct of the bank has been such as to confirm the understanding testified to.

Objection is made that parol evidence was not admissible-to prove the acts of the directors. Doubtless, if a written record was kept of their meeting and action, that would be the best evidence; but, if no record was kept, then parol evidence is as proper to prove such transactions as any other. Zaleshy v. Iowa, State Ins. Co. 102 Iowa, 512; Duluth, S. S. & A. R. Co. v. Douglas Co. 103 Wis. 75. It may be doubtful whether there is any presumption of the existence of any record of executive acts done by directors, such as negotiating and contracting directly with others, whatever may be .the rule as to their procedure when convened as a board for-■deliberation and legislation as to corporate affairs. In the instant case, however, we may pass that question, for the witness Burhans testified that he did not think the action of the directors as to the Rice matter appeared on the records. This suffices, prima facie, to deny the existence of any record, when definite proof on the subject — the record books themselves — were in the control of the adverse party. If Mr. Burhans was mistaken, the defendant could easily have shown that fact, and, in the absence of such showing, cannot complain of admission of paroi evidence.

We must hold that the transactions testified to by Mr. Burhans constituted an effective release of the mortgage lien, and that no incumbrance in favor of the bank rested on the property conveyed by Rice to Burhans, so that the alleged liability of the latter for Rice’s debt of $15,000 is not established. The indebtedness of the bank to Goodwin is declared by the findings, and none of the defenses thereto is sustained.

By the Court.— Judgment reversed, and cause remanded with directions to allow the plaintiff’s claim in accordance with the complaint.