Smith v. Clarke, 7 Wis. 551

Smith v. Clarke

7 Wis. 551 | Wis. | 1859

By the Court,

Cole, J.

We have already had occasion to consider the nature and character of school land certificates, as they are commonly called, and have no doubt but they are truly contracts for the sale of real estate, and must be treated as such in law. (See R. S. Chap. 24 ; passim; Smith vs. Mariner, 5 Wis. R., 551; J. A. B. Whitney vs. State Bank, post.) They are not in any just sense of the word, negotiable securities, and therefore it is a great mistake to apply ■to them the principles which govern the sale and transfer of such instruments, to which they bear no resemblance or analogy. The chapter of the revised statutes just above cited, declares what force and effect shall be given to the certificate, ■(§ 20) when the certificate shall become void and the purchaser forfeit all right and interest in the land described in such ■certificate, (§ 15) and further provides that the certificates *563may be acknowledged and recorded in the same manner that deeds of conveyance are authorized to be recorded; and that they also may be assigned by writing, which may be acknowledged and recorded in like manner; and that the person to whom the same shall be legally assigned, shall have the same rights and remedies thereupon as the original purchaser would have had, (S. 22.) There is nothing in the statute which would authorize the conclusion that the legislature designed to impart to these certificates, negotiable character, or a quasi negotiable character, and there is certainly nothing in the phraseology of the certificates which sounds like words of negotiability. Undoubtedly the certificates can be sold, and transferred by an assignment in writing like any contract, for the sale and conveyance of real estate, and although the custom may be as testified to by the assistant chief clerk of the school and university land office, Charles R. Gleason, to have the party to whom the certificate is issued, sign and acknowledge an assignment of the same, leaving the assignee’s name in blank, and then pass the certificate from party to party without further assignment; yet this practice fails to establish the negotiable or quasi negotiable quality claimed for them upon this argument. The certificates in controversy in this cause being in their legal character, contracts for the sale of real estate, and belonging to the respondent Smith, and Power, it follows that the transfer and delivery of them, by Power, to the appellants as security for the payment of his individual debt, could not, in any way, affect the right or bind the interest of the respondent. The appellants had an undoubted right to retain, as security, for the indebtedness of Power to them, the certificates to the extent of Powers’ interest in them, and no further. It was suggested that the respondent and Power, as to these certificates, were special or quasi partners, each in fact impliedly authorized to sell and dispose of them, as the agent of the other. There is not a particle of proof *564in the case tending to show that they stood towards each other in the relation of partners, unless the circumstance that they bought the certificates jointly, and each owned an undivided interest in them, would justify such an assumption, as evidently it would not. It becomes therefore unnecessary to en-quire whether if they have been partners, Power could, by virtue of that relation, and the power which each partner has to dispose of the partnership property — have pledged the certificates to secure his individual debt, as he attempted to do in this case.

It this connection it may be well to make a simple observation upon another position taken by the counsel for the appellants upon the argument. He insisted that since Power had the possession of the certificates, assigned in blank, he was clothed with the usual indicia of title, and that it is a maxim of law, that when one or two innocent persons must suffer by the misconduct of a third person, that party shall suffer who, by his own acts, and conduct, has enabled such third person, by giving him credit, to practice a fraud or imposition upon the other party. But the obvious answer to be given to this position is, that the certificates belonged to the respondent and Power jointly, and the latter was as much entitled to the possession of them as the former. Neither could claim an exclusive right to the custody and control of the certificates. And the evidence and allegations in the complaint furnish an explanation why the certificates were left in the possession of Power instead of being kept by the respondent.

The only remaining objection taken to the judgment of the circuit court which we feel called upon to notice, is, that the assignment of the certificates in blank was in violation of the statutes of fraud, (R. S., chap. 75, § 6) and void; and that no interest in the certificate or land could be transferred to and vest in the assignee by virtue of such an assignment. *565Whatever might be the effect of these assignments, as between the assignor and assignee, it becomes unnecessary in this case to consider, since certainly the respondent had such an equitable interest in the certificates as against the appellants, as the court could protect and secure.

We consider the judgment of the circuit court correct, and it is therefore affirmed.