50 Wis. 445 | Wis. | 1880
This action was brought to obtain the cancellation of an instrument, and the record thereof, purporting to he a conveyance by one Alexander Stewart, now deceased, of forty acres of land to the defendants James A. and Archibald A. Stewart. The case was here, on a former appeal, and is reported in 41 Wis., 624. In such report will be found a sufficient general statement of the case. A judgment for the plaintiffs was then reversed, and the cause remanded for a new trial. It has been again tried on the same issue. Such trial also resulted in a judgment for the plaintiffs, and the defendants James A. and Archibald A. Stewart have again appealed. In the last trial, as in the first, the testimony was all directed to the question whether the deed was ever delivered by the grantor to the appellants, and that remains the controlling question in the case.
Early in the year 1860, the grantor went to a justice of the peace and had the deed in controversy drawn up. He signed and acknowledged it, and took it away. No one went there with him. The reason he gave the justice for making the deed was, that he had executed a mortgage on the same land to a railroad company, presumably for stock therein, and he thought he ought not to pay it. He seemed to have the idea that the making of the deed would in some way defeat that mortgage. It does not appear that there was any communication between the grantor and the appellants on the subject before the deed was made.
Aside from the testimony of the appellants, there is no direct proof that they ever had the deed in their possession
There is much testimony of the acts and statements of the grantors and the appellants after the deed was made, bearing upon the question of delivery. Some of this testimony tends to support the hypothesis that the deed was delivered, and some of it tends in the opposite direction, bio attempt will be made to state this testimony in detail. It satisfactorily appeared that the land was assessed for taxation to the grantor constantly until he died, except that it was assessed one year to his brother, the appellants’ father. The receipts for the taxes, or many of them, were found among the papers of the grantor after his death, in a desk in his shop. The grantor was a bachelor, and lived, both before and after the deed was made, with the appellants, or one of them. It seems the three worked the land in controversy in common, though under what special agreement or arrangement, if any there was, is not shown. It appears that there was no visible change in the control or management of the land after the making of the deed.
After a most careful examination of the evidence (of which the foregoing is but an outline), we are impelled to the
If, therefore, the judgment of the circuit court is wrong, it is because the evidence tending to show non-delivery of the deed is outweighed by the testimony of the appellants, given by them as witnesses. If their testimony imported absolute verity, we could readily say that the delivery of the deed is proved. But their statements are not necessarily verities in the case. They are most deeply interested in the result of the litigation, and their testimony may be more or less influenced thereby. It is a circumstance to be considered. Moreover, in some material particulars they are contradicted by other witnesses. Their credibility is to be determined; and no tribunal is so competent to determine it as the trial court before which they, and all of the witnesses, gave their testimony in
The circuit court sustained objections to certain ■ questions propounded on behalf of appellants to different witnesses, and these rulings are assigned as error. An examination of the testimony shows that such questions were ultimately answered, except two which were put to one of the appellants. These were: (1) “Did you and your brother, from your earnings on this farm after it was deeded to you, pay off that railroad mortgage?” And (2) “Eor what purpose did you deliver the deed to your father? ” It is perfectly obvious from the testimony that the deed was so delivered for safe-keeping, and the ruling on that question is of no importance. Probably the appellants should have been permitted to prove that they paid the railroad mortgage, as it might have some bearing on the question of delivery. Tlie question is, however, very objectionable in form, for it assumes the whole ground of controversy, to wit, that the land was conveyed to the appellants. The ruling out of the question in that form is scarcely sufficient ground for reversing the judgment. However, in passing upon the testimony, we consider it as though the witnesses had answered the question in the affirmative, which is most favorable to the appellants.
Upon the whole case, therefore, we are impelled to the conclusion that there is no such satisfactory preponderance of evidence against the findings and judgment of the circuit court as will justify us in disturbing them.
By the Court. — Judgment affirmed.