Kent v. Lasley, 24 Wis. 654

Kent v. Lasley

24 Wis. 654 | Wis. | 1869

Dixon, C. J.

In considering the nature and sufficiency of the evidence required to convert a deed, absolute on its face, into a mortgage, we should never lose sight of the rules and practice of the court of equity at the time it was established by that court that parol evidence could be received for that purpose. The doctrine that a deed absolute in its terms can be thus transformed into a mortgage, and the title of the holder defeated, is purely an equitable, and not a legal, doctrine. It had its origin in the court of chancery, in which court alone the remedy could formerly be administered. The rules and practice of that court were such as to afford many safeguards to the rights of the grantee, and to obviate many evils which must otherwise have grown up out of the doctrine. The grantee was made a party defendant to the bill, and his answer thereto, under oath, had all the weight of the testimony of a single disinterested witness in the case, and even more. The denials of the answer upon the knowledge of the grantee must have been overborne by the testimony of one witness, with strong corroborating circumstances, or two positive witnesses ; or they must have been so manifestly at variance with the facts and circumstances disclosed by the pleadings and evidence, as to leave no doubt in'the mind of the court. And the witnesses were not only required to be disinterested and credible, but their opportunities of knowing the facts about which they deposed, must have been ample. Where the subscribing witnesses to *657tlie deed were alive, and their testimony could be obtained, that was preferred ; and the absence of such, testimony was considered as affording a fair presumption that, if produced, it would militate against him whose case it would sustain or destroy. The failure to examine the subscribing witnesses, or to satisfactorily account for their not being examined, cast a'shade of suspicion over the cause of the complainant, and induced the court to regard with more jealousy, and examine with stricter scrutiny, the less convincing proof on which he relied. Not only the best evidence was required, but it must have been clear and convincing. Such was the practice, and such the rules of evidence, which prevailed in courts of equity in causes of this nature. Bryan v. Cowart, 21 Ala. 92; Cook v. Gudger, 2 Jones’ Eq. 172. The same and no less convincing proofs were required, than are necessary to authorize the reformation of a written contract on the ground of mistake. If the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief, upon the ground that the written paper ought to be treated as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy. 1 Story’s Eq. Jur. § 152; Newton v. Holley, 6 Wis. 592; Lake v. Meacham, 13 id. 355; Fowler v. Adams, id. 458; Harrison v. The Juneau Bank, 17 id. 340. Looking, therefore, to the practice and rules of evidence which always obtained in equity in causes like this, I cannot for a moment doubt that the proof here is alto-together insufficient to overturn the deed, or disturb the title of the heirs of the grantee under it. It consists of the testimony of the grantor alone, weak, vacillating, uncertain and contradictory, unsupported by any strong corroborating fact or circumstance, and given years after the transactions spoken of, and after the death of the grantee, and when the witness, always ignorant and uneducated, had become old and infirm, and his powers *658of memory nearly destroyed by age and decrepitude. I very much, question whether, in any case, after the death of the grantee, the unaided testimony of the grantor alone, however intelligent and credible he may be as a witness, should be held sufficient to set aside the deed, or invalidate the title claimed under it. It would certainly be a most dangerous precedent to establish. But be that as it may, I am very clear that the testimony here is wholly insufficient for such purpose, and that the judgment of the circuit court should, for that reason, be affirmed.

By the Court. — Judgment affirmed.