68 Wis. 145 | Wis. | 1887
This is an action for the foreclosure of a mortgage for $400 executed November 5, 1881, by the defendants to one John Swager, and held by the plaintiffs. The answer admits the execution of the note and mortgage, but denies that the plaintiffs are the lawful owners thereof, and alleges that they have no right or title thereto, and that they belong to one Hattie Swager (who was the wife of said John),, and that the defendants paid said note and mortgage to her, and the prayer is that the same be delivered up to be canceled. The evidence on the part of the defendants tended to show that John Swager left Evansville, Wisconsin, to go to Florida for the benefit of his health, on the 14th day of November, 1881, and died in Florida, January 29, 1882; that previous to his leaving the state he placed the said note and mortgage in the hands of one- C. Godfrey Lehman for safe-keeping only; and that after the decease of John the defendants paid the same to Hattie Swager, his widow and heir, and that she claimed some right to the same by reason of having advanced money ‘to purchase the lot, the sale of which to the defendants was
"We are asked to reverse the judgment on the ground of a clear preponderance of the evidence against the plaintiffs as to their ownership of the note and mortgage. We ai-e unable to find such clear or any preponderance of the evidence against the plaintiffs’ claim of ownership. The credibility of -witnesses, and the weight to be given to their testimony, are matters which may be left with far more safety to the trial court. There are, however, some exceptions to the admission and rejection of testimony, that per‘haps ought to be considered. In an equity case’ such exceptions are only important when the testimony outside of that in question is insufficient to support the findings.
1. The statements of John Swager, before he left for Florida, tending to show that he had parted with the note and mortgage, or sold the same to the Evansville Furniture Company, were allowed to be testified to, against the objection of the learned counsel of the appellants. This testimony was of much importance on that issue, although, perhaps, nqt absolutely indispensable to support the finding that the note and mortgage belonged to the plaintiffs; and
2. By some of the same authorities the declarations of the deceased would be evidence against Hattie S wager, because she was in privity with John and is in privity with his estate ; and they cannot be given in her favor or in favor of the defendants. Fellows v. Smith, supra; Littlefield v. Littlefield, supra; Schenck v. Warner, supra. And see, also, Hackney v. Vrooman, 62 Barb. 650; Holmes v. Sawtelle, 53 Me. 179; 1 Greenl. Ev. § 189.
3. The testimony offered as to what her hnsband said as to Hattie’s interest in the note and mortgage when they were given, in order to prove that she owned them, was clearly immaterial as well as incompetent. There was no charge of fraud or mistake in the execution of the note and mortgage to John Swager, or of anything to impeach them; and such evidence would be improper to defeat the title of the plaintiffs to them, derived from John Swager, to whom they were executed by the defendants. It is always unfortunate, in such a case, that the mortgagee, the pretended assignor, is dead, but the case must necessarily be decided on such proper testimony as the parties are able to procure." The possession of the note by the plaintiffs is prima facie evidence of ownership, and it does not appear that Hattie ever had possession of it.".
We find no error in the record to reverse the judgment.
By the Court.— The judgment of the circuit court is affirmed.