Wochoska v. Wochoska

45 Wis. 423 | Wis. | 1878

LyoN, J.

The record does not contain the evidence, and the judgment is supported by the conclusion of law. Hence, if the learned circuit judge drew the correct conclusion from the facts found by him, the judgment cannot be disturbed. That this would be a valid mortgage had not the mortgaged premises been the homestead of the mortgagor and his wife, the plaintiff, even though they had not been subsequently divorced, cannot be doubted. The case would then be within the rule laid down in Putnam v. Bicknell, 18 Wis., 333.

The question is, whether the fact that when the mortgage was executed the premises mortgaged constituted such homestead, invalidates the mortgage. That question is answered in the negative by the decision of this court in Riehl v. Bingenheimer, 28 Wis., 84. It was there held that the statute which enacts that any mortgage or other alienation of a homestead by the owner thereof, if a married man, shall be void without the signature of the wife (Laws of 1867, ch. 172; Tav. Stats., 1549, § 28), has no application to a conveyance of a homestead by a husband to his wife. We all think that case was decided correctly.

It is claimed by the learned counsel for the defendants, that there is no sufficient averment in the complaint that the note described therein was delivered to the plaintiff, and no finding that it was so delivered. The complaint avers that the defendant Wochoska, did malee and execute the note, whereby he promised to pay the plaintiff, etc.; and the court found substantially that the averment is true. Without delivery, there could not be a making or execution of the note, or a promise to pay the sum named in it. ELence, by necessary inference, the complaint alleges and the court found a delivery of the note to the plaintiff. The statement in the complaint that after its execution the note was left in the possession of the' maker, does not rebut the inference of due deliver/ thereof to the payee; for certainly the holder of a note may leave it in the hands of the maker, for convenience or safe-keeping, without thereby cancelling the note, or destroying the effect of the original delivery thereof to the payee.

We think the conclusion of law from the facts found by the court should have been, that the plaintiff is entitled to the relief demanded in the complaint.

By the Court. — Judgment reversed, and cause remanded for further proceedings according to law. ’

UvAN, O. J., took no part.