Moehlenpah v. Mayhew

• Decision Date: 16 February 1909
• Citation: 138 Wis. 561,119 N.W. 826
• Parties: MOEHLENPAH ET AL. v. MAYHEW.
• Court: Wisconsin Supreme Court

138 Wis. 561

119 N.W. 826

MOEHLENPAH ET AL.

v.MAYHEW.^d1

Supreme Court of Wisconsin.

Feb. 16, 1909.

Appeal from Circuit Court, Rock County; E. Ray Stevens, Judge.

Action by H. A. Moehlenpah, administrator of Andrew Roberts, deceased, and others, against William A. Mayhew. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.Whitehead & Matheson and Thos. S. Nolan, for appellants.

E. D. McGowan and Burr W. Jones, for respondent.

TIMLIN, J.

This case presents several unusual and interesting complications. The plaintiffs, as administrator and heirs at law of Andrew Roberts, deceased, upon a complaint averring mental incompetency on the part of the deceased and fraud and undue influence on the part of the defendant, brought this suit to rescind the contract of sale hereinafter described and recover moneys received by the defendant under such contract. There was no express averment of mistake. The defendant answered denying the incompetency, undue influence, and fraud, admitting and relying upon the execution by the deceased to defendant of an assignment of the interest of the former in the residue and remainder of the estate of one Thomas S. Roberts and pleaded a judgment of the Supreme Court for Jefferson county, N. Y., in an action to construe the will of Thomas S. Roberts brought by the executor of the latter, and in which the defendant in this action and Andrew Roberts and others were parties defendant, wherein it was found and adjudged that the assignment in question was valid, and that the defendant Mayhew thereby became and was the owner of all the interest of Andrew Roberts under the will of Thomas S. Roberts. This judgment was duly proven, but in the proof it appeared that the action was begun February 11, 1904, findings were made therein on October 22, 1904, and judgment entered April 10, 1905. It also appeared that there was no issue pleaded or tried between the defendants therein, Andrew Roberts and W. A. Mayhew, and it otherwise appeared that Andrew Roberts died on June 19, 1904, during the pendency of the action in New York, and that the action was not, prior to judgment, revived against his administrator.

There is an irreconcilable conflict of authority upon the question whether a judgment rendered in form against a defendant who died after service upon him, or appearance, and before the trial, is void or merely voidable. Kager v. Vickery, 61 Kan. 342, 59 Pac. 628, 49 L. R. A. 153-175, and cases in note, 78 Am. St. Rep. 318. See, also, Supervisors of La Pointe v. O'Malley et al., 47 Wis. 332, 2 N. W. 632, and cases cited. We do not find it necessary to determine this question because it is not involved in the instant case. We are not considering the effect of the judgment as between the executor of the estate of Thomas S. Roberts and the plaintiff and defendant in this cause, but the effect of that judgment as an estoppel between the plaintiffs in this case, claiming under Andrew Roberts, and W. A. Mayhew, codefendant of Andrew Roberts in the New York action. In a subsequent litigation between themselves, parties who were codefendants in a former action are not concluded by the judgment in such former action, unless there was an issue framed between such codefendants covering the point in question, or unless the plaintiff in the former action made a claim against each defendant which negatived in effect the right thereafter claimed by the other against his codefendant, as in Giblin v. N. W. L. Co., 131 Wis. 261, 111 N. W. 499, 120 Am. St. Rep. 1040,Strong v. Hooe, 41 Wis. 659, or in Devin v. Ottumwa, 53 Iowa, 461, 5 N. W. 552. See 2 Black on Judgments, § 599, and cases. But in case there is no issue made by the pleadings between the two defendants, then in a subsequent litigation upon a different cause of action it might be shown that the issue in question was not in fact adjudicated. Grunert v. Spalding, 104 Wis. 193, 80 N. W. 589. Proof of the death of one before trial or verdict might serve to show that as to him and his representatives in this situation there was no issue tried upon notice and hearing, and consequently no decision binding his representatives and his codefendant mutually as between themselves. Grunert v. Spalding, supra.

Our statutes, however, provide for such cases: “Where there are several plaintiffs or defendants in any action, if any of them shall die and the cause of action survives to or against the others the action may proceed, without interruption, in favor of or against the survivors. If all the plaintiffs or defendants shall die before judgment the action may be prosecuted or defended by the executor or administrator of the last surviving plaintiff or defendant, as the case may be.” Section 2804, St. 1898. This part of the section relates to joint rights of action and joint liabilities, and there is also found later in the same section provisions regarding joint and several liabilities. Section 2805, St. 1898, which covers all other cases of this kind not included in section 2804, provides that: “In case of the death of any of several plaintiffs or defendants, if part only of the cause of action or part or some of two or more distinct causes of action survives to or against the others the action may proceed without bringing in the successor to the rights or liabilities of the deceased party, and the judgment shall not affect him or his interest in the subject of the action.” If we may accept the notes to these sections as evidence, the same statutes exist in New York; but, in any event, we are authorized to presume they do. Slaughter v. Bernards, 88 Wis. 111, 59 N. W. 576;Rape v. Heaton, 9 Wis. 328, 76 Am. Dec. 269;Walsh v. Dart, 12 Wis. 635;MacCarthy v. Whitcomb, 110 Wis. 113, 85 N. W. 707, and cases in opinion; Hyde v. German Nat. Bank, 115 Wis. 170, 91 N. W. 230;Edleman v. Edleman, 125 Wis. 271, 104 N. W. 56. The action in New York was within the words of the statute last quoted; that is to say, one of several defendants died, and such part of the cause of action as was averred against the other defendants survived against them, and consequently the judgment did not affect the deceased or his interest in the subject of the action. Judson v. Love, 35 Cal. 463. The judgment has therefore no binding force upon the parties litigant in this action.

Notwithstanding this case was quite close in that respect, the trial court found in favor of the defendant upon the questions of fraud, undue influence, and want of capacity, and under the rule of Momsen v. Plankinton, 96 Wis. 166, 71 N. W. 98, and similar cases, we do not feel justified in disturbing such findings; but the findings and undisputed evidence in this situation of the record present the following facts: On January 9, 1900, Thomas S. Roberts died testate in the state of New York leaving one-third of the residue of his estate to his brother Andrew Roberts, a resident of Wisconsin, subject, however, with the other two-thirds of such residue, to the life use of the same by the widow of Thomas S. Roberts, who had also the right to use so much of the corpus of this residue as might be necessary to properly care for and maintain her. The value of this residue of the estate left by said Thomas S. Roberts was about $8,800, and at the time of his death his widow was about 65 years of age and in good health. Under the will of Thomas S. Roberts another third of this $8,800 subject to the life estate of his widow as aforesaid passed to a brother, Eliakim Roberts; but the latter died testate April 12, 1901. Under his will there came to Andrew Roberts certain moneys not necessary to mention here in detail, but which were collected for Andrew Roberts by the defendant Mayhew. In addition to these moneys so collected, there came to Andrew Roberts through the will of Eliakim Roberts, but from the estate of Thomas S. Roberts, a further interest in said residue or remainder of $8,800 amounting to about $600. December 22, 1903, Andrew Roberts assigned his interest in the estate of Thomas S. Roberts and in the estate of Eliakim Roberts to the defendant Mayhew in consideration of $400, of which $100 was paid in cash and the remainder by a note for $300 bearing 4 per cent. interest. At the time of such assignment Andrew Roberts was 84 years of age, a sufferer from palsy, unable to write, addicted to the use of tobacco and intoxicating liquors, at times to excess, but possessed mental capacity to transact business. By virtue of this assignment the defendant received about June 30, 1905, the sum of $2,558.46, and on January 13, 1906, $587.58. The circuit court, among his findings negativing fraud and undue influence and lack of capacity, found as a fact: “(5) That at the time such assignment was made neither the deceased nor the defendant knew of the death of the widow of said Thomas S. Roberts, which had occurred on August 27, 1903.”

Findings of fact not material to the issues in an action are not binding upon the parties in subsequent litigation. Lathrop v. Knapp, 37 Wis. 307;People v. Johnson, 38 N. Y. 63, 97 Am. Dec. 770. But this finding was relevant to the issues of fraud, undue influence, and lack of capacity, made by the pleadings, for if the defendant Mayhew knew of the prior death of the life tenant, and that he was buying an absolute present vested title for a small sum, instead of a remainder subject to a life estate of uncertain duration and contingent in amount, although not in title, but concealed this knowledge from the old man, this would be strong proof of fraud. It would be a fact relevant to and which might alone support the charge of fraud or that of undue influence. Indeed, the learned circuit judge in his written opinion suggests that the determination of the case by him might have been different had this fact appeared. On the other hand, had it appeared that Andrew Roberts knew that he was selling, not a remainder, contingent in amount, which he might never live to enjoy,...