28 Wis. 33 (Wis. 1871), Etta v. Evenson

Citation28 Wis. 33
Opinion JudgeLUTHER S. DIXON, C. J.
Party NameVAN ETTA v. EVENSON, impleaded, etc
AttorneyJ. C. Ford, for appellant Gregory & Pinney for respondent:
CourtUnited States State Supreme Court of Wisconsin

Page 33

28 Wis. 33 (Wis. 1871)

VAN ETTA

v.

EVENSON, impleaded, etc

Supreme Court of Wisconsin

January, 1871

Page 34

[Syllabus Material]

Page 35

APPEAL from the Circuit Court for Dane County.

Action to foreclose a mortgage purporting to have been executed by Thrond Evenson and Anna Maria, his wife, to secure a note made at the same time by one Hegg and said Thrond Evenson. The note and mortgage were given to secure money loaned by the plaintiff to said Hegg; and said Evenson, who was the owner in fee of the mortgaged premises, answered denying that he ever executed or delivered the mortgage, or ever received any consideration for it; and alleging that said mortgage and note were, as to him, false, fraudulent and void; and demanding judgment that they were void and be delivered up to be cancelled, and that the mortgage be satisfied of record. Reply in denial.

It appeared from the evidence that the names of Thrond Evenson and Anna Maria Evenson were signed to the mortgage and note by Hegg, who was the son of said Anna Maria and stepson of said Thrond. There was conflicting evidence as to whether such signatures were made with their knowledge and consent. It also appeared that the name of the payee and mortgagee was not inserted in the several instruments until after their execution; that they were made for the purpose of enabling Hegg to obtain a loan of money through one Brown, residing in the city of Madison; that at the time of their execution Hegg did not know from whom the money was to be obtained by Brown, and therefore did not know to whom the note and mortgage were to run; and that after he brought the securities to Brown for the purpose of delivering them and receiving the money, he inserted the name of the plaintiff, upon ascertaining from Brown that plaintiff was the person from whom the money was obtained.

The court found that the defendants made the note and mortgage as alleged in the complaint; that all the material allegations in the complaint were true; and that the matters set up in the answer of Thrond Evenson, by way of defense and counterclaim, were not true. Judgment of foreclosure against the defendants; from which Thrond Evenson appealed.

Judgment affirmed.

J. C. Ford, for appellant, contended upon the evidence that the appellant never authorized Hegg to sign his name to this mortgage or to deliver the same. He further insisted that the note was probably void, and the mortgage certainly so, because the name of the payee and mortgagee was inserted by Hegg without any direct authority from the appellant or his wife, and without their knowledge, and the instruments were delivered without the express direction or knowledge of either of them. Ayres v. Harness, 1 Ohio 173; opinion of MARSHALL, C. J., in 2 Brock. 64; 2 Nott & McC., 125; Byers v. McClaunham, 6 Gill & J., 250; Gilbert v. Anthony, 1 Yerg. 69; Graham v. Holt, 3 Iredell 300; Woodworth v. Bank of America, 19 Johns. 391; Manning v. Norwood, 1 Ala. 429; Shepherd's Touchstone, 54.

Gregory & Pinney for respondent:

Where one affixes his signature to a blank form, or to an instrument in which blanks remain to be filled, he prima facie authorizes the instrument to be filled or completed as such instruments are usually filled and completed. Bank v. Neal, 22 How. 96; Bank v. Kimball, 10 Cush. 373; Spitler v. James, Am. Law Reg. for 1870, 605, and cases there cited. And this principle has been extended to instruments under seal. Keane v. Smallbone, 84 Eng. Com. Law, 179; Vliet v. Camp, 13 Wis. 205. The authority is held to be deducible from the nature and objects of the instrument and its possession by a third party; and the intention of the parties and the authority to fill the blanks are as clearly deducible...

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38 practice notes
  • 84 N.W. 350 (N.D. 1900), Henniges v. Paschke
    • United States
    • United States State Supreme Court of North Dakota
    • November 20, 1900
    ...R. 438. In the absence of express authorization authority to fill in such blanks may be inferred from circumstances. Van Etta v. Evenson, 28 Wis. 33; Davis v. Lee, 59 Am. Dec. 267; Inhabitants v. Huntress, 53 Me. 89; State v. Young, 23 Minn. 551; Swartz v. Ballou, 47 Ia. 118; Anguello v. Bo......
  • 84 N.W. 350 (N.D. 1900), Henniges v. Paschke
    • United States
    • United States State Supreme Court of North Dakota
    • November 20, 1900
    ...R. 438. In the absence of express authorization authority to fill in such blanks may be inferred from circumstances. Van Etta v. Evenson, 28 Wis. 33; Davis v. Lee, 59 Am. Dec. 267; Inhabitants v. Huntress, 53 Me. 89; State v. Young, 23 Minn. 551; Swartz v. Ballou, 47 Ia. 118; Anguello v. Bo......
  • 75 N.W. 569 (Neb. 1898), 8045, Bloomfield State Bank v. Miller
    • United States
    • Supreme Court of Nebraska
    • May 19, 1898
    ...to equitable relief: McCarty v. Brackenridge, 20 S.W. 997; Garland v. Wells, 15 Neb. 298; Read v. Morton, 24 Neb. 760; Van Etta v. Evenson, 28 Wis. 33; Swartz v. Ballou, 47 Ia. 188; Field v. Stagg, 52 Mo. 534; Drury v. Foster, 2 Wall. [U. S.] 24; Curtis v. Buckley, 14 Kan. 449; Cribben v. D......
  • 44 Wis. 306 (Wis. 1878), North v. Henneberry
    • United States
    • United States State Supreme Court of Wisconsin
    • Invalid date
    ...in several cases, that an instrument under seal may be altered by the parol consent of the party to be bound thereby. Van Etta v. Evenson, 28 Wis. 33; Vliet v. Camp, 13 Wis. 198; Kilkelly v. Martin, 34 Wis. 525. In the last case cited, it was held that the subsequent assent to a material al......
  • Request a trial to view additional results
38 cases
  • 84 N.W. 350 (N.D. 1900), Henniges v. Paschke
    • United States
    • United States State Supreme Court of North Dakota
    • November 20, 1900
    ...R. 438. In the absence of express authorization authority to fill in such blanks may be inferred from circumstances. Van Etta v. Evenson, 28 Wis. 33; Davis v. Lee, 59 Am. Dec. 267; Inhabitants v. Huntress, 53 Me. 89; State v. Young, 23 Minn. 551; Swartz v. Ballou, 47 Ia. 118; Anguello v. Bo......
  • 84 N.W. 350 (N.D. 1900), Henniges v. Paschke
    • United States
    • United States State Supreme Court of North Dakota
    • November 20, 1900
    ...R. 438. In the absence of express authorization authority to fill in such blanks may be inferred from circumstances. Van Etta v. Evenson, 28 Wis. 33; Davis v. Lee, 59 Am. Dec. 267; Inhabitants v. Huntress, 53 Me. 89; State v. Young, 23 Minn. 551; Swartz v. Ballou, 47 Ia. 118; Anguello v. Bo......
  • 75 N.W. 569 (Neb. 1898), 8045, Bloomfield State Bank v. Miller
    • United States
    • Supreme Court of Nebraska
    • May 19, 1898
    ...to equitable relief: McCarty v. Brackenridge, 20 S.W. 997; Garland v. Wells, 15 Neb. 298; Read v. Morton, 24 Neb. 760; Van Etta v. Evenson, 28 Wis. 33; Swartz v. Ballou, 47 Ia. 188; Field v. Stagg, 52 Mo. 534; Drury v. Foster, 2 Wall. [U. S.] 24; Curtis v. Buckley, 14 Kan. 449; Cribben v. D......
  • 44 Wis. 306 (Wis. 1878), North v. Henneberry
    • United States
    • United States State Supreme Court of Wisconsin
    • Invalid date
    ...in several cases, that an instrument under seal may be altered by the parol consent of the party to be bound thereby. Van Etta v. Evenson, 28 Wis. 33; Vliet v. Camp, 13 Wis. 198; Kilkelly v. Martin, 34 Wis. 525. In the last case cited, it was held that the subsequent assent to a material al......
  • Request a trial to view additional results

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