Witt v. Trustees of the Grand Grove of the United Ancient Order of Druids

55 Wis. 376 | Wis. | 1882

TayloR, J.

After a careful consideration of the evidence we are unable to see that any questions of law involved in the case have been erroneously decided by the court below; and upon the question of fact there is certainly no such preponderance of evidence against the findings of the learned judge who tried the case as would justify this court in reversing such findings. Take the evidence as a whole, and it seems to us to preponderate in favor of the findings of the trial court. We think it was properly found that all the transactions between the parties were had for the purpose of securing the payment of the debts due from Witt to the Grand Grove, and that there was at no time any intention on tbe part of - either to vest an absolute and unconditional title to the property in the Grand Grove. The fact that after the sale was made to Gonrad the Grove offered to pay over to Witt any surplus of the consideration above the sums actually due from Witt to it, with interest and expenses, is almost conclusive evidence that it was not understood, when the conveyance was made to the Grove, that it was to vest in it the absolute and unconditional title.

There are many other things in the evidence tending to disprove the right of the Grove to make any such claim in this case. The court having rightfully found that the respondent was entitled to the relief demanded, the judgment upon all the evidence was sufficiently favorable to defendants. The respondent is only allowed to redeem upon, the payment of the full amount due from him to the Grove, with interest to the date of the judgment. It allows the respondent nothing for the use of the premises since Gonrad was put in possession, in May, 1881; charges the respondent with the taxable costs of the appellants; and refuses him any costs of the action. The appellant Gonrad complains that he was allowed nothing for his improvements on the premises. There are two answers to this claim: First, that he was not a tona fide purchaser, without notice of the respondent’s equities, is we think clearly shown by the evidence; he is not, therefore, entitled to pay for improvements made without the express or implied consent or approval of the respondent. Moore v. Cable, 1 Johns. Ch., 385; 1 Story’s Eq. Jur., §§ 388, 656. In this case there was no concealment of the respondent’s title, or delay in asserting his rights, which could raise an equity in favor of Gonrad to claim compensation for improvements. Second, the court has not charged him with any rent for the use of the premises during his occupation thereof, which would be a partial, if not a full, compensation for such improvements. On the whole case we think the judgment must be affirmed as to all the appellants.

The respondent asks this court to reverse so much of the judgment as compels him to pay the costs of the appellants •in the court below, and also to allow the respondent fbr the use and occupation of the premises, and have the value of such use deducted from the amount due the appellants. The record shows that the respondent excepted to the order of the court requiring him to pay the appellants’ costs of the action. He has not, however, excepted to any findings of fact upon which this order of the court is founded, nor has he appealed from the judgment as finally entered against him upon that exception, but has complied with the terms thereof. The respondent does not appear to have taken any exception in the court below, because the court did not allow him for the use or occupation of the mortgaged premises, nor ask the court to make any finding in his favor, or otherwise, upon that subject. We think the respondent who has not appealed is not, upon an appeal from the judgment by the opposite party, entitled to reverse such judgment, or any part thereof. By his failure to appeal he must be held to have conclusively waived any errors committed by the court below which may have prejudiced his right to a more favorable judgment. It has been repeatedly held that, under the code, upon an appeal from a judgment tried by the court, or by a referee, this court does not retry the case upon its merits, except so far as is necessary to determine whether the trial court has committed any errors as to those matters excepted to by the appealing party; and the rule is the same whether the action be one which was formerly deno ruinated an equitable action or an action at law; and if none of the findings of fact are excepted to by the appealing party, this court will not look into the evidence to see whether they are supported or not, but will simply determine whether the judgment entered is, as a matter of law, sustained by such findings.

We are not disposed to give any further 'effect to the exceptions of the respondent, upon an appeal to this court, than was suggested in the case of Maxwell v. Hartmann, 50 Wis., 660, viz., that the exceptions of the respondent, in a case tried by the court or a referee, “ may be available so far as they may serve to sustain the judgment.” See, also, Stevens v. Millard, 36 Wis., 83; Pettigrew v. Evansville, 25 Wis., 233, 234. To that extent it is reasonable to allow the respondent to avail himself of any errors appearing in the findings, and to which he has filed exceptions. To do that is not inconsistent with the position of the respondent in acquiescing in the judgment as rendered; but to go further, and allow him, on an appeal from a judgment with which he must be conclusively held to be satisfied, to avail himself of exceptions to reverse the same or any part thereof, seems to us inconsistent with his position in the case, and ought not to be allowed.

By the Gourt.— The judgment of the county court is affirmed.