110 Wis. 316 | Wis. | 1901
The question of the validity of the mortgage involves three questions: (1) Can the homestead of a married man be alienated without the signature of his wife-being affixed to the instrument of conveyance by her own hand with intent to cause such alienation ? (2) Does a power to sell and convey real estate include power to mortgage the same? (3) Does a conveyance of the homestead of a married man, executed by him, with the wife’s signature affixed thereto by her verbal request, for the purpose of obtaining-money for her use, together with a full execution of such purpose, operate by estoppel to alienate such homestead?
As we view the last two propositions the first need not be considered. If the power of attorney to sell and convey did not authorize the act of J. A.MoGrossen in signing his wife’s name to the mortgage, and the circumstances under which the transaction occurred are not sufficient to render such signing equivalent to the personal signature of Mrs. Mc-Crossen by estoppel, it is immaterial whether such personal signature was necessary or not.
The power of attorney was a mere power to sell and convey, importing authority to sell out and out for cash and not power to mortgage. That is elementary. Jones, Mortgages, § 129; Devlin, Deeds, § 363a; Morris v. Watson, 15 Minn. 212; Colesbury v. Dart, 61 Ga. 620; Wood v. Goodridge, 6 Cush. 117; Hoyt v. Jaques, 129 Mass. 286; Perry, Trusts, § 768. No departure from such general rule, worthy of consideration, we venture to say, can be found. There is a contrary line of decisions in the state of Pennsylvania, commencing with Lancaster v. Dolan, 1 Rawle, 231, decided in 1829, and based on an overruled English case. The initial decision, though recognized as wrong tested by the generally accepted doctrine on the subject, was followed
“ It cannot be questioned but that a mere naked power to sell and convey does not include a power to mortgage.”
The Massachusetts court, speaking on the subject in Hoyt v. Jaques, supra, said:
“In the ordinary case of a power‘to sell and convey’ land, given by a principal to his attorney, it is clear that the attorney would not be authorized to mortgage the land. The two transactions of a sale and a mortgage are essentially different.”
The learned counsel for respondents favor us with an interesting and very full discussion of the subject of judicial construction of powers of attorney, covering the whole field thereof, including that of practical construction, but we are unable to see how any rule on the subject has anything to do with this case. No principle is better understood than that a written instrument, not ambiguous either in its literal sense or in the application of its language to the subject or purpose thereof, must be taken to mean what it says, reading it in the sense in which its words would be ordinarily understood, and that where an ambiguity is raised by applying the language of an instrument as before indicated, it cannot be solved by resorting to a meaning not within the reasonable scope of such language. In other words, language cannot be judicially extended beyond its reasonable scope in order to effect the intent of parties, however obvi
The idea is advanced that written authority to an agent may be extended by subsequent oral authority. That is so in many cases, but not where the authority is required by law to be in writing. A power to sell and convey real estate can no more be extended or changed by parol than can a conveyance of real estate. That is so elementary that the suggestion of respondents’ counsel to the contrary does not require further notice.
It is claimed that Mrs. McCrossen was bound by estoppel; that she was powerless to accept the benefit of the money obtained by the mortgage given by her consent, and then successfully raise the question of want of authority to sign her name to the instrument under the general power of attorney or the verbal request. That point is ruled against respondents by Cumps v. Kiyo, 104 Wis. 656. It was there held that the protection which the law of this state throws around the homestead right is not exclusively for the benefit of married women,— that it extends to the whole family, rendering the homestead inalienable otherwise than in the precise manner indicated in the statute. It was there said that the doctrine declared does not go so far as to prevent a married woman from being bound by estoppel on the specific question of whether a particular piece of property is or is not a homestead, or that a paper signed by her purporting to convey the homestead was so intended, but does prevent the doctrine of equitable estoppel from nullifying the
There is left the question of fact, upon which the case mainly turned, as to whether the removal of Mr. MoOrossen from the homestead was for temporary purposes, with intent not to abandon it as a homestead but to reoccupy it as such, as found by the court. We shall not discuss at length the evidence upon which such finding was made. The'trial judge saw the witnesses. He heard the testimony. His opportunity for discovering the truth from what was said and all the circumstances disclosed, as has often been said, was far superior to that possessed here. The presumption is that he reached a correct conclusion, and that presumption is so strong that it cannot yield so easily as to be disturbed by a conclusion here, from reading the evidence, that it preponderates, merely, against the decision. That rule has been very, but not too, often declared. The force of it •seems to be so frequently misconceived that reiterations thereof, in language calculated to give it that significance wfiich it really has in our system, seem proper. When it is comprehended that the decision of a trial judge on a question of fact must stand as a verity unless shown to be clearly wrong by a decided preponderance of evidence against it, outweighing the contrary evidence and the presumed advantages which he may legitimately have had in discovering the truth that do not appear in the record, one will take in the full scope of the effect of such decision and •appreciate the great power which the trial judge exercises in such matters. It is a power but little less than that exercised by a jury in deciding questions of fact. The proper exercise of it calls for the most careful scrutiny of the evi-
In this case there is the very significant circumstance that Mr. McCrossen exercised the elective franchise in the state of Washington three times while residing there. We must presume that the essentials of citizenship are the same in that state as here, and that MeCrossen,s assertion of the right of citizenship, as indicated, was inconsistent with his possessing a homestead in the state of Wisconsin. But we cannot say that such circumstance is conclusive. He violated the law in voting, or he committed perjury in testifying that his residence in the state of Washington was for mere temporary purposes and that his intention at all times was to return to the Wisconsin homestead. The trial court concluded from all the circumstances that he testified to the truth. It seems, looking at the record alone, that there is room for a different conclusion. But there are many cases in the books where it has been held that the mere act of voting at a particular place is not conclusive on the question of residence. Many well-considered cases of that kind are cited to our attention in the brief of counsel for respondents. Robinson v. Charleton, 104 Iowa, 296; Dennis v. Omaha Nat. Bank, 19 Neb. 675; Mallard v. First Nat. Bank, 40 Neb. 784; Corey v. Schuster, 44 Neb. 269; Campbell v. Potter (Ky.), 29 S. W. Rep. 139. In the last case cited the Kentucky court said:
“This court has held that the homestead right is never forfeited when there has been an occupancy and then a temporary removal with the intent to return and make the*325 premises a borne. Appellants endeavored to show that the appellee abandoned all purpose to return to the property and that his residence had been permanently located elsewhere by proving that he registered and voted in wards in Bowling Green other than the one in which his home was situated. The proof shows that he did this. This act is not conclusive of the question, but is merely a fact, in connection with the other facts proven, to aid the court in determining whether the removal of the appellee from the premises was permanent or temporary The court holds that the act of registration and voting are not sufficient to overcome the weight of the testimony which conduces to prove that the removal was temporary.”
Courts generally, that have spoken on the subject, reason in the same vein. In this case the circumstance of voting in the foreign jurisdiction was rebutted by the positive evidence of Mr. MeCrossen of his purpose in going to the state of Washington and his intention at all times to return, and the circumstance, established by his evidence and that of other witnesses, that the removal to Washington was for the sole purpose of benefiting Mrs. McCrossen’s health. In view of all the evidence in the record, and the weight, as above indicated, to be given to the decision of the trial judge, we cannot say that such decision is against the clear preponderance of the evidence. Therefore it cannot be disturbed.
By the Court.— The judgment rendered in favor of defendants for costs, establishing the homestead right of J. A. McCrossen, is affirmed. The judgment establishing the validity of the mortgage is reversed. No costs in this court will be allowed in favor of either party to the appeal, except the appellants shall pay the clerk’s fees. The cause is remanded with directions to modify the judgment entered so that it will decree the invalidity of the mortgage in accordance with this opinion.
