Ludlow v. Gilman

18 Wis. 552 | Wis. | 1864

By the Court,

DixoN, C. J.

As in the preceding case of Gilman v. Thiess et al., ante, p. 528, a question is made upon the sufficiency of the exceptions. The suit is in equity to foreclose a mortgage, and the exceptions are certainly more specific than in that case. “ The plaintiff excepts to the decision of the court upon the trial of this action upon the matters of law and equity.” The exception is confined to “ the matters of law and equity,” and no objection is taken to the facts found. The plaintiff does not seek to review the evidence. I think the exception sufficient. I think so in analogy to the rule that a general exception to a charge involving several propositions of law is good, if the charge is in all respects erroneous. Thrasher v. Tyack, 15 Wis., 256; Jones v. Osgood, 6 N. Y., 233; Caldwell v. Murphy, 11 N. Y., 416. So it seems to me that a general exception to tbe judge’s conclusions of law upon tbe facts found by him should be sustained, where his conclusions are altogether'exceptionable. Such I deem the conclusions here. They are three in number, and all erroneous, within the following decisions of this court: Walker v. Wilson, 13 Wis., 522; Hall v. Gale, 14 Wis., 44; Taft v. Kessel, 16 Wis., 273; Horton v. Arnold, ante, p. 212. The notes and mortgage were given to secure part of the purchase money for the mortgaged premises. The defendant took possession of the whole premises at the time of the conveyance to him, and the judge finds that he held such possession at the time of the trial, never having been ousted or disturbed by any adverse or paramount claimant. As yet he has suffered no injury, and it cannot be assumed that he ever will suffer any in consequence of the alleged fraudulent misrepresentations. His possession may ripen Into a title absolute and good against all the world. He cannot, therefore, retain the possession and repudiate his obligations to pay. His damages are, at most, merely ly nominal.

Judgment reversed, and cause remanded for further proceedings according to law.