Flint v. Jones , 5 Wis. 424 ( 1856 )

By the Court,

Smith, J.

This was an appeal in equity from the Circuit Court of Winnebago county.

The bill was filed on the 25th day of October, 1855, and sets forth that, on the 3d day of October, 1853, the complainant “preempted ” at the United States land office in Menasha, a certain piece of land known as the north half of the northwest quarter of section 14, in township No. 22, in range No. 15, east, and that at or about the same time, the complainant entered into an agreement with the defendant, “ whereby it was agreed that the said Jones should furnish the purchase money, and the complainant was to execute some proper security on the land, running to the said Jones; “ that the complainant was to lumber on the land, and the defendant was to receive his pay out of the proceeds of the lumber in the ensuing spring, for the purchase money, and also for supplies which the defendant was to furnish the complainant, with interest at the rate of twelve per cent, per annum.” The complainant entered the land on the 7th day of October, 1853. The bill further states that the business was done in a hasty manner; that the complainant signed a deed of said land to Jones, containing the usual covenants of warranty, without reading it or hearing it read; that the deed was not acknowledged; that but one witness saw him sign the deed; that he entered the land by preemption with $100 which Jones then and there leí' him have; that the deed was recorded, and appeared to be acknowledged by complainant and wife, but that his wife never signed nor acknowledged the same, and charges that the deed was procured by fraud.

The bill waives an answer under oath, and prays that the deed may be canceled, and that the equitable lien on the land may be discharged by the complainant paying into court so much money as the court may direct, and that in default of such payment, tbe defendant may bave execution, tberefor; tkát tbe said conveyance be treated as a mortgage transaction; also, for general relief.

The answer admits the preemption, and an agreement to furnish $100 to be invested in land; avers that the deed was drawn by one Potter, for Flint, at his request; was signed by him after he had read it, or heard it read, and that he acknowledged the deed in presence of the attesting witnesses thereto ; admits that the complainant’s wife did not sign or acknowledge the deed, and avers that her name was inserted by mistake of the officer. The answer denies any .partnership agreement, or any agreement to furnish supplies to the complainant, but admits that he did give him permission to take so much lumber from the said land as he could take off the next winter with one team; denies that Flint supposed the deed a mortgage, or in the nature of a mort-, gage, or agreement to secure the purchase money; and denies all fraud, &c. General replication.

No principle of equitable jurisprudence is better settled than that the complainant must recover, if he recover at all, upon the case made by his bill. The proofs must correspond with the allegations made, and must sustain the statements and charges set forth in the bill, or no relief can be granted, however strongly the proofs may show that he is entitled to some relief.

Now the gist of the complaint in this case is, that Jones agreed to advance to the complainant $100, as a loan for the purpose of entering the land in question, and to furnish supplies for the lumbering business for the next winter, to take security upon the land for the purchase monejr advanced, and to receive his pay, both for the money advanced and for the supplies, with twelve per cent, interest, in the ensuing spring, out of the proceeds of the lumbering business; that he did advance the $100 for the purchase money, and instead of taking security, by mortgage or otherwise, on the land, he fraudulently procured the complainant to sign an absolute deed of conveyance of the land, with full covenants of warranty, &c.

Without recapitulating the evidence, it is sufficient to say, that there is not one particle of proof to sustain the case made by the bill, except the testimony of the complainant himself. Upon what ground his testimony was admitted,:the record does not disclose. But admitting that the proceedings in the court below were such as rendered it competent, it falls far short of making out the case, and is contradicted by two or three witnesses. Not' only is there wanting evidence to prove the fraud alleged, but the evidence utterly fails to establish the agreement set' up in the bill. Whatever equities he may have, it is apparent that he is not entitled to the relief prayed for, nor to any relief upon the pleadings and proofs presented by this record.

"Decree of the court below affirmed, with costs.