Wisconsin Bank v. Morley

19 Wis. 62 | Wis. | 1865

By the Court,

Dixotsr, O. J.

I do not think that the grantee of lands, unconditionally conveyed as in this case, is an “ as-signee,” within the statute prohibiting the examination of a party to an action as a witness in his own behalf, where such party claims as assignee and the original assignor is dead. R. S., p. 818, ck. 134, sec. 2, Laws of 1858. It seems to me that the word “ assignee ” is employed in its more usual and appropriate sense, of one suing or defending to enforce rights or avoid demands devolving upon him in a representative capacity; of one standing in the place of the original assignor, to assert rights which had accrued to, or defeat claims which had arisen against such assignor before the assignment, by virtue of which the same rights passed to, and the same claims accrued against, the alleged assignee. I think the term “ assign-ee ” means a person who claims under the “ assignor,” and in subordination to his rights and duties, and that it cannot be applied to one who, as the unqualified owner of property, sues or defends strictly in his own right. Such is the defendant Morley. He defends as the owner of the estate supposed to have been mortgaged to the bank, and not as the representative of Aldrich or in subordination to his rights. In fact Al-drich had no rights — no beneficial interest whatever which he could transfer to the bank; it being already known to the bank, or to Miller, that the property belonged^and ought to have been conveyed to Morley, and that Aldrich was at most a mere naked trustee or title holder for him. If, before Aldrich conveyed to him, Morley had instituted an action, as he might, against Aldrich for a conveyance, and against the bank to remove this incumbrance, could it have been said that in such proceeding he was acting as Aldrich’s assignee ? Certainly not. He would bave claimed adversely to both Aldricb and tbe bank, and bis right would bave been prior and superior to that of either. By tbe conveyance from Aldricb to him, Morley's claim against Aldricb for tbe legal title is disposed of, but bis claim against the bank to bave the incumbrance removed remains unchanged. Tbe defense in this action is but another form of asserting the same claim, and in making it, Motley as clearly and truly stands upon bis own prior and paramount right, as he would bave done bad he instituted an action in tbe manner above indicated. In no just sense can be be said to defend as tbe as-signee of Aldricb.

But tbe construction contended for by the counsel for tbe bank involves this further consideration. Tbe disqualification of the party depends wholly upon tbe character in which be sues or defends, and not at all upon tbe facts of the controversy, or the nature of tbe facts to which be may be ealled to testify. If be sues or defends as “ assignee,” be cannot be admitted to give evidence under any circumstances. He cannot be examined to rebut tbe testimony of the opposite"party upon transactions between themselves, nor to prove or disprove any alleged fact, though it may have been unknown to the original assignor, and one of which, if alive and called, be could say nothing. Every grantee of lands suing for or defending bis title or possession, would be excluded whenever the original grantor is dead (for the statute is, “the original assignor”), and that though such grantor died years before the matters in controversy actually arose. I am satisfied that such was not the intention of tbe legislature, and that it would be doiüg violence to their language so to construe it. I understand the courts of New York to bave given the same construction to a like statute of that state. Penny v. Black, 6 Bosw., 50 ; Crosby v. Nichols, 3 Bosw., 450; McGinn v. Worden, 3 E. D. Smith, 355.

The admissibility of Motley's testimony being established, tbe merits of tbe controversy seem less difficult. There can be no pretense that Aldrich bad original authority from Morley to execute the mortgage. Indeed this is scarcely claimed by the bank. The conversation of Morley and his recommendations to Miller at the time he introduced Aldrich in the summer of 1859, amount to nothing by way of establishing such authority. They were mere general words of commendation, employed on occasion of the introduction of a stranger, and not intended nor understood as the grant of authority. Miller, who represents the bank throughout the transaction, took the mortgage knowing that Aldrich was not the owner and that the property was Motley's. He took it without the slightest evidence that Aldrich was authorized by Morley to execute it. It turns out upon trial that Aldrich had no such authority. So far then the mortgage was void as against Morley, and the only ground upon which it can be sustained is that taken by counsel, namely, that Morley subsequently acquiesced in and ratified it. Upon this point it is urged that Millet, in September, 1861, notified Morley that he had made the loan and taken the mortgage, and that Morley waited until September, 1862, before repudiating it, or informing Miller that Aldrich acted without authority. If it be admitted that the case is one where mere silence on the part of Morley, after notice from Miller, would constitute a ratification, still I do not think there is any proof to warrant the application of the doctrine. Morley, who admits the receipt of Miller’s letter in September, 1861, testifies to nothing of the kind. True, he says he wrote to Aldrich for information respecting it, but he does not say that he did not reply to Miller. Neither does Miller, himself a witness, testify that Morley neglected to answer, or that Morley first informed him of Aldrich’s want of authority in September, 1862. Counsel seem to assume the fact because in the series of letters which passed between Morley and Miller, and which were introduced on the part of the bank, the first in which Morley denies the validity of the mortgage was dated in September, 1862. But it is obvious that the letters introduced were not all which passed between the parties. Of those introduced, the first from Morley by no means indicate that he had been slow in repudiating the mortgage. On the other hand it is fairly to be inferred from them, not only that he had replied to Miller’s first communication, but that he had informed him that the mortgage was invalid. He speaks of the claim as one which must be collected from Aldrich’s estate. And his letter of September, 1862, was written in answer to one from Miller of the first of the same month. Again, Miller’s letters tend to the same conclusion. In that of June 11th, 1862, he writes for advice as to what is then to be the course taken in regard to Aldrich’s affairs in Madison. This by no means indicates that Morhy had kept silence, or that he had acquiesced in or acknowledged the validity of the mortgage. But aside from this criticism upon the correspondence, I hold that the fact of ratification, if ratification there was, should be as clearly made out in evidence as that of original authority, in case the bank had relied upon that. " In either case the burden of proof is upon the bank. If Morley did not reply to Miller for the space of a year, or if, replying, he did not deny Al-drich’s authority or admitted it, the fact was one susceptible of clear and easy proof, and should have been placed in clear light before the court. Miller was upon the stand. He could have testified to it or produced the letters. Morley was upon the stand, and he also might have been questioned. But instead of this, no question of the kind was put to either, 'and I think there is no evidence in the case authorizing the assumption of the counsel, and that the judgment should be affirmed.

Judgment affirmed.