18 Wis. 130 | Wis. | 1864
By the Court,
We will notice such exceptions as we deem material in this case, in the order in which they arise upon the record and were discussed by counsel.
First, it is insisted that the deed given by William Hinch-liff — the reformation or correction of which is the object of this suit — was improperly admitted in evidence, its due execution not having been proven by the subscribing witnesses. The deed, however, was attested by two witnesses, and acknowledged before a magistrate, and was executed with all the formalities of law essential to entitle it to be recorded. Our statute expressly authorizes a conveyance thus executed, witnessed and acknowledged to be read in evidence in any court within the state, without further proof thereof. Sec. 31, ch. 86, R. S. The counsel for the appellants contends that this provision was not intended to apply to a case where the grantor in the deed is dead. But no exception of the kind is found in the statute. Its language is general, clear and un
The next exception relates to the admission of the deposition of Parthena Hinchliff. She was a party to the suit, and lived more than thirty miles from the place of trial. Her deposition was taken by the respondent before a magistrate in conformity to sections 8 et seq., chap. 137. As her testimony was unfavorable to some of her co-defendants, they objected to its admission, on the ground that the statute gives a justice of the peace no authority whatever to take the deposition of a party to the record. Sections 53, 54 and 55, of chap. 137, are relied on in support of this view. Upon an examination of those provisions, we are of the opinion that the objection was well taken, and that the deposition was erroneously admitted. For those sections, in effect, provide that where a party to an action resides more than thirty miles from the place of trial, his deposition may be taken by the adverse party before a judge of the court, or county judge, on previous notice to the party to be examined and any other adverse party, of at least five days. By a subsequent enactment, the words “ or court commissioner” are added after the words “ or county judge” in the 55th section. This legislation clearly shows that it was not the design to permit the depositions of parties to the record to be taken before a justice of the peace, but to confine the power of taking them to the judge of the court, county judge, or court commissioner. Whether there is any substantial ground or reason for taking a distinction between the
And this brings us to the main question in the cause, namely, whether the evidence shows that the deed was ever delivered by William Hinchliff to the respondent so as to make it effectual to pass the title ? And upon this point it must be admitted that the evidence is somewhat conflicting, and leaves some room to doubt as to what was the real intent of the parties to the conveyance. There is certainly considerable testimony tending to show that there was no complete delivery of the deed, and that the grantor never assented to the possession of it by the grantee as an instrument for passing the title. But after carefully weighing all the evidence bearing on that point, we do not think it sufficiently strong to overcome the opposing circumstances, particularly to rebut the presumption of delivery arising from the possession of the deed by the grantee. We do not, however, propose to go into any decision of the evidence upon the question of delivery, and shall content ourselves with barely stating the conclusion at which we arrived in considering it. We think the weight of evidence decidedly in favor of the theory that there was a good and sufficient delivery of the conveyance.
It is possible, as is suggested on the brief of the counsel for the respondent, that notwithstanding the deed was executed and delivered with intent to pass the title, yet the parties supposed it would not take effect until it was recorded, and that while unrecorded the grantor might revoke or recall it. It is more than probable that the parties were laboring under that impression. Still this error in law cannot change the consequences resulting from their deliberate acts. If the deed was executed and delivered with intent to pass the estate to the grantee, it must so operate although the grantor might have supposed he could revoke the conveyance at some future time if he desired.
It is said that it is very improbable that William Hinchliff
Upon the point that there was a mistake in the description of the property there is no room for doubt. If the deed was delivered so as to become effectual to pass the title, then it is clear that it should be corrected so as to conform to the intent of the parties.
We think that the respondent was entitled to recover costs. Whether those costs shall ultimately come out of the administrator’s own pocket or be paid out of the estate, is a question which may arise in the final settlement of the administrator’s account in the probate court. But no reason occurs to us why the respondent should not recover his costs in this suit.
On the whole case we think the judgment is right and must be affirmed.