Morrison v. Koch , 32 Wis. 254 ( 1873 )

Lyon, J.

I. It is contended by the learned counsel for the appellants, that the assignment of the mortgage by Mrs. Hus-tis to Ludington is invalid, because her husband (who, it is assumed, was the original owner of the mortgaged premises, and is therefore the owner of the mortgage) did not join with her in making such assignment. One difficulty with this position is, that there is no evidence that the husband ever owned the mortgaged premises. The facts that he joined in the conveyance to the mortgagors, and that he became a covenantor therein, are entirely consistent with the hypothesis that Mrs. Hustis owned the mortgaged premises in her own right. Without deciding what would have been the effect had it appeared that the husband was the owner of the mortgaged premises, we think, in the absence of proof to the contrary, the presumption is that Mrs. Hustis, the mortgagee named therein, was the owner of the mortgage, and might lawfully assign and transfer it without the concurrence of her husband. We must hold, therefore, that the plaintiff is the owner of the mortgage by virtue of the assignment thereof by Mrs. Hustis to Ludington, and by the latter to the plaintiff.

II. The defense to this action is not founded upon any supposed breach of the covenants in the deed of Hustis and wife to the mortgagors, but upon the alleged fraudulent representations made by the former to the latter concerning the then present and the future supply of water. The substance of these representations was, that there then was, and would always remain, sufficient water in the mill dam to furnish the quantity of water conveyed to the mortgagors.

There was a further representation to the effect that the mill dam supplied about three times as much water as was thus conveyed. Conceding this to have been an exaggeration, the mortgagors could not have been prejudiced by it if they got their 875 inches of water under the agreed head. Besides, this representation is obviously merely the expression of a somewhat indefinite opinion or estimate of the amount or quantity of water discharged from the mill dam, and could not have been intended, or relied upon, as a positive assertion of fact. Hence it is believed that, notwithstanding the last mentioned statement, the substance of the alleged fraudulent representations, so far as they can be available as a defense in this action, is above correctly stated.

So far as such representations related to the future supply of water, it seems quite clear that no charge of fraud can be predicated upon them. At most, there was a mere expression of opinion, that, in the future, the conditions on which the water supply depended would remain favorable to a continuance of such supply. The mortgagors had the same means of forming an opinion in that behalf that the grantors had; and it cannot be correctly said that the expression of that opinion, although it turned out that it was an erroneous one, was a fraudulent representation. It is wanting in all of the essential elements wbicb constitute fraud. If it was the intention of the parties to the deed that the grantors, or either of them, should guaranty to their grantees a fixed and. definite amount of water for all time, a covenant to that effect should have been inserted in the deed.

The representation concerning the then existing supply of water was found by the circuit court to be true. "We think this finding is sustained by the proofs. It appears quite satisfactorily from the testimony of Christian Koenig, who ran the mill on the mortgaged premises for one year immediately preceding the sale, and was perfectly familiar with the water power in question, that at the time of the sale there was sufficient water in the mill dam to furnish Cole, Lyon and Everett with their six hundred inches under a head of nine feet, and also to furnish the mortgagors 875 inches under the head specified in the conveyance to them. Hence, taking it to be proved that Hustis and wife made the representations stated in the complaint, we think that the truth thereof, so far as a charge of fraud can be predicated upon them, is established by the evidence.

The foregoing views dispose of all the objections taken to the judgment appealed from adversely to the appellants. It follows that the judgment of the circuit court must be affirmed.

By the Court — Judgment affirmed.