Hinchliff v. Hinman , 18 Wis. 130 ( 1864 )

By the Court,

Cole, J.

We will notice such exceptions as we deem material in this case, in the order in which they arise upon the record and were discussed by counsel.

First, it is insisted that the deed given by William Hinch-liff — the reformation or correction of which is the object of this suit — was improperly admitted in evidence, its due execution not having been proven by the subscribing witnesses. The deed, however, was attested by two witnesses, and acknowledged before a magistrate, and was executed with all the formalities of law essential to entitle it to be recorded. Our statute expressly authorizes a conveyance thus executed, witnessed and acknowledged to be read in evidence in any court within the state, without further proof thereof. Sec. 31, ch. 86, R. S. The counsel for the appellants contends that this provision was not intended to apply to a case where the grantor in the deed is dead. But no exception of the kind is found in the statute. Its language is general, clear and unambiguous, and covers all conveyances “ authorized by law to be recorded, and which shall be acknowledged or proved as provided in this chapter.” Nor is there anything in section 92, chap. 137, inconsistent with this construction. The latter section evidently refers to a different class of instruments from those mentioned in section 31 above cited. If upon trial it is found that the statute with this construction opens the door to fraud and injustice, the remedy is with the legislature. But we will add that we can perceive no ground for apprehension upon that score.

The next exception relates to the admission of the deposition of Parthena Hinchliff. She was a party to the suit, and lived more than thirty miles from the place of trial. Her deposition was taken by the respondent before a magistrate in conformity to sections 8 et seq., chap. 137. As her testimony was unfavorable to some of her co-defendants, they objected to its admission, on the ground that the statute gives a justice of the peace no authority whatever to take the deposition of a party to the record. Sections 53, 54 and 55, of chap. 137, are relied on in support of this view. Upon an examination of those provisions, we are of the opinion that the objection was well taken, and that the deposition was erroneously admitted. For those sections, in effect, provide that where a party to an action resides more than thirty miles from the place of trial, his deposition may be taken by the adverse party before a judge of the court, or county judge, on previous notice to the party to be examined and any other adverse party, of at least five days. By a subsequent enactment, the words “ or court commissioner” are added after the words “ or county judge” in the 55th section. This legislation clearly shows that it was not the design to permit the depositions of parties to the record to be taken before a justice of the peace, but to confine the power of taking them to the judge of the court, county judge, or court commissioner. Whether there is any substantial ground or reason for taking a distinction between the manner of taking tbe deposition of a party, and that of taking the deposition of any other witness, we need not stop to inquire. The legislature seem to have made a distinction, and limited the examination of parties to certain officers. Of course a party wishing to use the deposition must comply with the statute for taking it, in order to render it available. This not having been done in this case, the deposition of Parthena Hinchliff cannot be considered in determining the cause. — The next objection is, that the circuit court improperly excluded the testimony of George Higbee. As a matter of fact the testimony was admitted under objection, but the judge states in his finding that he did not consider it in deciding the cause, because he deemed it incompetent. Higbee was a party to the suit — being the husband of Mary Ji, daughter and heir at law of William Hinchliff; and it is claimed that he was disqualified by virtue of section 51 of the chapter just cited. It is said that the respondent is clearly incompetent to testify in his own behalf under that section, inasmuch as the principal defendant on the other side defends in the character of administrator. The principal matter in controversy relates to the execution and delivery of the deed by the deceased William Hinchliff, and the respondent is not permitted to give evidence about that transaction for the reason that the other actor cannot be called upon to correct or contradict his statements if untrue. Hence, by the principle and policy of the statute, the respondent is excluded. Eor the same reason, it is claimed, the defendant Higbee ought not to be a witness and testify as to matters which occurred between him and the respondent when the latter is disqualified. This view of the matter is not without force and reason. But whether it is sound, we shall not decide, because, assuming that Higbee was a competent witness, there is nothing in his testimony which would change our views upon the remaining point in the case to be considered. We have therefore examined his evidence upon the supposition that it was admissible, but still the result is not changed.

And this brings us to the main question in the cause, namely, whether the evidence shows that the deed was ever delivered by William Hinchliff to the respondent so as to make it effectual to pass the title ? And upon this point it must be admitted that the evidence is somewhat conflicting, and leaves some room to doubt as to what was the real intent of the parties to the conveyance. There is certainly considerable testimony tending to show that there was no complete delivery of the deed, and that the grantor never assented to the possession of it by the grantee as an instrument for passing the title. But after carefully weighing all the evidence bearing on that point, we do not think it sufficiently strong to overcome the opposing circumstances, particularly to rebut the presumption of delivery arising from the possession of the deed by the grantee. We do not, however, propose to go into any decision of the evidence upon the question of delivery, and shall content ourselves with barely stating the conclusion at which we arrived in considering it. We think the weight of evidence decidedly in favor of the theory that there was a good and sufficient delivery of the conveyance.

It is possible, as is suggested on the brief of the counsel for the respondent, that notwithstanding the deed was executed and delivered with intent to pass the title, yet the parties supposed it would not take effect until it was recorded, and that while unrecorded the grantor might revoke or recall it. It is more than probable that the parties were laboring under that impression. Still this error in law cannot change the consequences resulting from their deliberate acts. If the deed was executed and delivered with intent to pass the estate to the grantee, it must so operate although the grantor might have supposed he could revoke the conveyance at some future time if he desired.

It is said that it is very improbable that William Hinchliff would have conveyed absolutely to bis sons property worth $1,-200 or $1,500 for a consideration of $200 or thereabouts. This will not appear so strange when regard is had to the character, condition and situation of the grantor. It might appear ungenerous, and is surely unnecessary, to make any severe remarks upon his character and disposition as they are delineated in the proofs. It is sufficient to say that it fully appears he was rather impulsive and capricious, and far advanced in life. He undoubtedly had a strong desire, when not under the influence of passion, to have his son Richard live with him and work the farm. And as a strong inducement for him to do so, he conveyed a portion of the farm to him and another son. There is nothing very unnatural or strange about the transaction when the circumstances and condition of the parties are considered. That the old man might have thought he could recall the conveyance, if not pleased with the conduct of his sons, is quite probable. But, as already observed, this does not change or vary the legal effect of the delivery of the deed when once made with intent to pass the estate.

Upon the point that there was a mistake in the description of the property there is no room for doubt. If the deed was delivered so as to become effectual to pass the title, then it is clear that it should be corrected so as to conform to the intent of the parties.

We think that the respondent was entitled to recover costs. Whether those costs shall ultimately come out of the administrator’s own pocket or be paid out of the estate, is a question which may arise in the final settlement of the administrator’s account in the probate court. But no reason occurs to us why the respondent should not recover his costs in this suit.

On the whole case we think the judgment is right and must be affirmed.