Kelly v. Crawford

• Citation: 88 N.W. 296,112 Wis. 368
• Parties: KELLY ET AL. v. CRAWFORD.
• Decision Date: 17 December 1901
• Court: United States State Supreme Court of Wisconsin

112 Wis. 368

88 N.W. 296

KELLY ET AL.

v.CRAWFORD.

Supreme Court of Wisconsin.

Dec. 17, 1901.

Appeal from circuit court, Clark county; Frank M. Fish, Judge.

Action by Hannah Kelly and others against John J. Crawford. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Action in ejectment by six of the nine children of William Crawford, who died intestate October 1, 1899, against John J. Crawford, another child, to recover 80 acres of land in Kenosha county, Wis., of which the paper title has at all times been in William Crawford, but which the defendant has occupied as a farm continuously since the year 1875. The defense was--First, an alleged parol gift from William to John J., consummated by possession and improvements, consisting of clearing the land and building thereon residence, barns, etc.; secondly, adverse possession for more than 20 years. The same facts were further set up as a counterclaim, with prayer that title be adjudged and quieted in defendant. The case was tried to the court without a jury, and the court found that William Crawford died seised in fee simple and possessed of the premises in question; that the defendant's occupation had at all times been in subservience to his father, and not adversely, and not by a parol gift, and not otherwise than by permission of William Crawford; that defendant's possession is fully explained by the evidence herein to have been permissive in its origin, and to have so continued up to the death of William. Thereupon judgment was entered in favor of the plaintiffs against the defendant, adjudging the former to hold in fee simple six-ninths of the land in controversy and to be entitled to the possession thereof; also dismissing defendant's counterclaim for confirmation of his title under the alleged parol gift. From that judgment defendant appeals.Wallace Ingalls and A. L. Sanborn, for appellant.

Peter Fisher and W. C. Upton, for respondents.

DODGE, J. (after stating the facts).

One question of the admissibility of certain evidence, which obviously had much weight with the trial court, naturally precedes a review of the findings. That question arises thus: Defendant offered two loose sheets of paper, bearing no label or designation or date. Each is in three columns, headed, “Articles Sold,” “Name,” “Amount, $ cts.” They contain some 20 items of which the following are typical:

+------------------------------------------------------------------+
                ¦53 Steers   ¦John Woodhouse Cash $200; settled balance note¦507.--¦
                +------------+----------------------------------------------+------¦
                ¦Rent on Land¦John Crawford; settled by note                ¦300.--¦
                +------------------------------------------------------------------+
                

All the entries were in the handwriting of a deceased daughter of William Crawford, Minnie, who frequently did his writing for him, and who, at the time of an auction sale, held before her father went to Minnesota in 1884, made up what witnesses call sale sheets, in collaboration with one Gleason, since deceased. There is no evidence that the papers offered in evidence were such sheets, nor when they were made. They are accounted for by testimony of a sister, Hannah, that after the father went to Minnesota, apropos of discussion as to what a certain party bid at the sale, Minnie produced these sheets out of her trunk, where she had some other papers and books of her father. The papers in question thereby became separated from the others, and remained with Hannah thereafter. There was also produced and admitted in evidence a stub book of promissory notes, on which were descriptions of notes in the handwriting of the deceased, Minnie, and among them the description of a note to William Crawford for rent on land, dated March 5, 1884, due in one year, $300, with nothing to indicate who was the debtor. In a different handwriting which also appeared in notations of payment on other stubs, appeared the words, “Due--John Crawford.” There was no evidence whatever as to this book, except that the original entries were in Minnie's handwriting, and that it was found among the papers of William Crawford after his decease. The admissibility of these papers must depend upon the provisions of our statute (sections 4186, 4189). Section 4186 authorizes the introduction in evidence of nothing but account books, and therefore can have no applicability either to these separate sheets of paper or to the stub book in question. Neither is an account book. Section 4189, however, which is comparatively new legislation, authorizes the reception in evidence of “entries in a book or other permanent form, other than those mentioned in sections 4186 and 4189b, in the usual course of business, contemporaneous with the transactions to which they relate, and as part of or connected with such transactions, made by persons authorized to make the same, * * * when shown to have been so made upon the testimony either of the person who made the same, or, if he be beyond the reach of a subpœna, * * * of any person having custody of the entries and testifying that the same were made by a person or persons authorized to make them, in whose handwriting they are, and that they are true and correct to the best of his knowledge and belief.” Waiving the question whether such fugitive sheets of paper may ever be deemed to be in such permanent form as to be admissible, there is no proof that the entries either upon the sheets of paper or upon the stub book were made in the usual course of business, were contemporaneous with the transactions to which they relate, or were a part of or connected with such transactions; nor that they are true and correct to the best of the knowledge and belief of the custodian producing same. This statute gives admissibility to documents which by the common-law rules of evidence would be excluded, and it is to take effect only upon reasonably strict compliance with all of the requisites which it prescribes. These most important ones being absent, the documents should not have been admitted in evidence, and should not have been considered by the trial court.

The record discloses that, after holding these documents admissible, the court, in the light of certain other facts, construed them as establishing the payment of rent for the 80 acres in question by the appellant to his father in 1884, about eight years after the commencement of his possession. So construed, they were of course most cogent evidence against the existence of any gift from the father to the son, as also against the adverseness of the latter's possession. An act of this sort between the two parties to the alleged transaction could hardly be overcome by any evidence short of direct testimony as to the words which passed between father and son at the time of the supposed oral transfer. We cannot doubt--indeed, the opinion filed by the court excludes doubt--that these documents, so construed, had great weight upon the mind of the court in passing upon other testimony, and in reaching his conclusion upon the facts embodied in his findings. Those findings, therefore, so far as influenced by such consideration, must be regarded as induced by an erroneous view of the law, thus depriving them of much of their force and conclusiveness. Maldaner v. Smith, 102 Wis. 30, 78 N. W. 140;Hill v. Surety Co., 107 Wis. 19, 26, 81 N. W. 1024, 82 N. W. 691. It cannot be said that the court would have reached the conclusion he did as to either the parol gift or the quality of the possession, had he not first become convinced that the appellant had paid rent to his f...