Meade v. Lawe , 32 Wis. 261 ( 1873 )

LyoN, J.

I. It was not error to refuse to permit the defendants to amend their answer, and plead the statute of limitations as a defense. It was entirely in the discretion of the circuit court to refuse or allow the amendment. This court so held in Fogarty v. Horrigan, 28 Wis., 142; and in Eldred v. The Oconto Company, 30 id., 206.

The proposed amendment is to the effect, 1st. That the defendants will insist on the statute of limitations as a bar to the action; and 2d. That the title of the plaintiff to the premises in controversy has been divested by certain tax deeds thereof made and recorded more than three years before this action was commenced, and that during said three years the premises were not occupied by the plaintiff. Under the present answer the defendants can, doubtless, show title out of the plaintiff. The general denial puts the plaintiff’s title in issue, and the answer alleges substantially that Mrs. Brothers has been in possession thereof since 1863. But it is unnecessary to pursue this subject further.

II. On the trial, the plaintiff was a witness in his own behalf, and gave testimony tending to show that he had no knowledge of the conveyance to Mrs. Brothers until several months after the same was executed. There was also read in evidence on the part of the plaintiff a conveyance of another portion of the lands described in the power of attorney, executed by the defendant Lawe to his son, and the plaintiff testified concerning the value of the land described therein. An objection was sustained by the court to the following question put to the plaintiff on his cross examination : “ Did you not authorize that conveyance to be made by Geo. W. Lawe ¶ ” It is understood that the conveyance here referred to is the one executed by the defendant Lawe to Mrs. Brothers. The objection was, that the testimony sought to be elicited is immaterial and incompetent. The defendants also at the proper time proposed to prove by a witness on the stand, “ that all the sales of this property were made by George W. Lawe with the knowledge and assent of the plaintiff.” This is understood to relate to the sales to Mrs. Brothers and to the son of the defendant Lawe before mentioned, as those seem to be the only sales referred to in the testimony. The offered testimony was objected to on behalf of the plaintiff as immaterial, and the circuit court sustained the objection.

We are of the opinion that these rulings are erroneous. The question put to the plaintiff was a proper cross examination. He had testified concerning the time when be first knew of the conveyance to Mrs. Brothers, and this interrogatory was pertinent to that subject. But we perceive no good reason why the interrogatory, and the offered testimony, should not have been admitted on the merits. If the conveyance to Mrs. Brothers was made with the knowledge and consent and by the express authority of the plaintiff, it seems almost too clear for argument that the plaintiff is thereby estopped from denying the validity of such conveyance. But the defendants were not permitted to prove these facts. We are at a loss to understand the grounds upon which the offered testimony was rejected. Eor this error there must be a new trial.

III. As to the tax deeds ruled out by the circuit court. These seem to purport to convey the premises in controversy, but each of them contains exceptions, and in the absence of any plats we are unable to say whether or not the said premises are included in the exceptions. It is impossible, therefore, for us to decide the question of their admissibility.

IY. There is some testimony tending to show that the deed to Mrs. Brothers was never delivered to her, and it is probable that it should have been submitted to the jury to find how the fact is. It is likely, however, that if the deed was delivered to her, evidence of the fact will be produced when the cause is again tried.

Y. We forbear to express an opinion on the question whether the defendants should have been permitted to prove by parol evidence that the conveyance from Lawe to the plaintiff, and the power of attorney, were given under the circumstances and for the purposes and objects stated in the answer. This is an important question, and it is quite doubtful how it should be determined. Indeed we do not feel prepared to determine it without further argument and consideration.

This controversy ought to be settled amicably by the parties to it. They are relatives ; neither of them asserts any very strong equities; and the final result of the litigation is too doubtful to make it either wise or profitable to proceed farther with it.

By the Court.— The judgment of the circuit court is reversed, and a new trial awarded.