Hilmert v. Christian

| Wis. | Jun 15, 1871

Cole, J.

It is very apparent that the jury must have found under the directions of the court that the deed was executed, acknowledged and delivered in the name of Mary Hilmert. The court very clearly and pointedly instructed the jury that the action must fail, if they found from the evidence either that the deed when delivered had both William and Mary Hilmert named as grantees therein; or if it was executed and delivered as a deed to William, and his name was afterwards struck out and the naine of Mary inserted in its place as grantee; because the delivery of the deed to William would have the effect to vest the title absolutely in him, and that no act other than a deed executed by him would operate to vest the title in Mary, This is the substance of the instructions given at the request of both plaintiffs and defendant. So that the jury must have been satisfied from the evidence that the deed was executed and delivered in the name of Mary, and this conclusion, we think, is amply sustained by the proof in the case. An inspection of the original deed, which has been sent up with the bill of exceptions, most conclusively shows that the name originally inserted as grantee was Mary Hilmert, and that the word “Mary” was stricken out and the name “ William ” was written over it in the same handwriting, and that then “William” was struck out and “ Mary” interlined, and that a reference was made to this in-terlineation at the, bottom of the deed in the following words, viz: “It should be Mary by consent of the parties before signing.”

The evidence relied upon to show that the deed was executed and delivered as, and for a deed, to Wm. Hilmert, is the testimony of the witnesses Little and Chaplin. The former was one of the witnesses to the deed, and the justice who took the acknowledgment He was quite confident that William Hil-mert was the grantee, and that Mary’s name was not in the deed when he took the acknowledgment. The other witness to the deed-'was Chaplin, who testified with equal confidence that the name of the grantee was William Hilmert. But what destroys, in a great degree, the effect of this testimony, is the fact that the deed, upon its face, shows, beyond all question, that the name of the grantee, as first written, was Mary Hilmert, and both these witnesses are quite positive that there was no erasure or interlineation in the deed when they signed it as witnesses. They are most indubitably mistaken, either as to the name of the grantee, or about the fact of an erasure at this time, and it is more probable that they were mistaken on the first point than on the latter. For such an erasure and interlineation as these are in this deed catch the eye at the first glance, while the name of the grantee is less likely to attract notice. The witnesses would have observed that the name “ Mary ” was erased, and the name “William” was inserted above it, between the lines, had this been done before the execution of the deed.

It is tbe first thing about tbe deed that arrests and fixes tbe attention of one examining tbe instrument. And we should therefore infer from the testimony of these witnesses, that there was no erasure and interlineation in the deed when they saw it, and that Mary Hilmert was tbe name of the grantee when the deed was executed and aeknowleged. There is another circum-stahce that the feminine personal pronoun is used in tbe instrument where tbe grantee is referred to. So that, if it were our duty to pass upon tbe effect of testimony and determine what facts were established by it, we should say that the strong probability was that tbe name of tbe grantee, when tbe deed was executed and delivered, was Mary Hilmert. This was the result reached by tbe jury, and this conclusion is fully sustained by the evidence. There is no pretence that there was any alteration made in the deed by Mary Hilmert or with her consent after the delivery thereof. We really do not see any force in the objection that tbe grantor did not covenant for himself but only “ for bis heirs, executors and administrators.” It is plain enough upon tbe face of tbe instrument that tbe defendant bound himself by the covenants.

These remarks dispose of tbe material points in tbe case.

By the Court. — Tbe judgment of tbe circuit court is affirmed.