Nau v. Brunette

• Decision Date: 09 April 1891
• Parties: NAU ET AL. v. BRUNETTE.
• Court: Wisconsin Supreme Court

79 Wis. 664

48 N.W. 649

NAU ET AL.

v.BRUNETTE.¹

Supreme Court of Wisconsin.

April 9, 1891.

Appeal from circuit court, Brown county.

Rev. St. Wis. § 4069, provides that “no party, and no person from, through, or under whom a party derives his interest or title, shall be examined as a witness in respect to any transaction or communication by him personally with a deceased person, * * * in any civil action or proceeding in which the opposite party derives his title, or sustains his liability, to the cause of action, from, through, or under such deceased person, * * * unless such opposite party shall first be examined, or examine some other witness in his behalf, concerning some transaction or communication between the deceased * * * and such party or person. * * *”

This is an action of ejectment, brought by plaintiffs to recover certain land in Brown county, being a designated portion of private claim No. 10. The defendant admits his possession of the land claimed, as charged in the complaint. The history of the title to such land, as the same appears by the records and documents introduced in evidence, so far as it affects the questions considered in the opinion, is as follows: In 1857, and before, the defendant, Augustin Brunette, was the owner of a portion of private claim No. 10, including the land in controversy. In that year Augustin and wife executed to Joseph Pauquette a mortgage on the land so owned by him to secure the payment of $550 and 12 per cent. interest. In 1864 Pauquette assigned such mortgage to Cormier and Wigger, who immediately thereafter assigned the same to Joel S. Fisk. The mortgage and assignments were duly recorded. In 1866 Fisk foreclosed the mortgage by advertisement, pursuant to a power of sale contained therein, and purchased the mortgaged premises at the foreclosure sale. Fisk afterwards died testate, and the lands of which he died seised were duly partitioned to the persons entitled thereto. The land in controversy was assigned to William J. Fisk. On January 24, 1882, the latter conveyed the same land to John Brunette. In 1884 John Brunette and wife executed a mortgage on the same and other land to the plaintiffs as executors of the last will of L. Nau, deceased. This mortgage was thereafter foreclosed, and the plaintiffs became the purchasers of the mortgaged property at the foreclosure sale. March 16, 1888, the sheriff who made the sale duly conveyed the land thus sold to the plaintiffs. April 4, 1870, Augustin Brunette and his wife executed to John Brunette a quitclaim deed of the land in controversy, to gether with other lands. Augustin Brunette claims that he only intended to lease the land to John for two years, and supposed that the instrument he executed, which in form is a conveyance of the land, was such lease. On the trial, at the close of the testimony, the court directed the jury to return a verdict for plaintiffs, which they accordingly did in the form prescribed by law. Judgment was thereupon entered for plaintiffs for the recovery of the land in controversy. The case is further stated in the opinion. The defendant appeals from the judgment.Ellis, Greene & Merrill, for appellant.

Huntington & Cody, for respondents.

LYON, J., ( after stating the facts.)

The plaintiffs claim title to the land in controversy in this action through two distinct lines of conveyances: (1) They claim title thereto under the mortgage executed by Augustin and wife to Pauquette; the assignments thereof by Pauquette to Cormier and Wigger, and by them to Joel S. Fisk; the foreclosure of such mortgage by Fisk, and his purchase of the land at the foreclosure sale; the devolution of his title upon William J. Fisk, by the death of Joel S.; the probate of his will, and the partition proceedings; the conveyance by William J. Fisk to John Brunette; and the mortgage executed by John and wife to plaintiffs; the foreclosure thereof; the sale of the land to plaintiffs on such foreclosure; and the conveyance thereof to them by the sheriff who made such sale. (2) They also claim title under the quitclaim deed of the land executed by Augustin and wife to John, April 4, 1870; the mortgage from John and wife to them; and the proceedings thereunder, as above stated.

I. The validity of the title to the land in suit, which it is claimed vested in Joel S. Fisk under the foreclosure of the Pauquette mortgage, and his purchase thereof at the foreclosure sale, is denied upon two grounds. They are (1) that the mortgage debt was paid to Pauquette, and (2) that the notice of such sale is fatally defective.

1. All the testimony in support of the claim that the mortgage debt was paid to Pauquette is the following, given by Augustin: “In 1857 I made a mortgage on this land to Pauquette. I paid it, but he never gave me the mortgage back. He died, and they sold it to Fisk after that. I paid it with money and work, and the last payment I gave him my horse,--the last horse I had; finished up $240.” The record shows that Pauquette himself assigned this mortgage to Cormier and Wigger, May 16, 1864, who assigned it to Fisk the next day, and the assignments were immediately recorded. This is a conclusive refutation of Augustin's statement that such assignments were made after Pauquette died. There is no testimony showing when he died, and no other testimony of his death. It does not appear when Augustin paid the mortgage. It is just as probable that he paid it after Pauquette assigned it as that he did so before. There is no legal presumption one way or the other. If paid after the execution and recording of the assignment, it was inoperative to defeat the mortgage in the hands of the assignee. The testimony is therefore entirely insufficient to prove an effectual payment of the mortgage debt. Besides, such testimony was incompetent. The plaintiffs derive their title to the lands through Pauquette, who the defendant swears is dead. The alleged payment of the mortgage consisted of a series of personal transactions between defendant and Pauquette. The statute declares that Augustin shall not be examined as a witness to such transactions. Rev. St. § 4069.

2. The notice of sale reads as follows: “Notice is hereby given that by virtue of the power of sale contained in said mortgage, and in pursuance of the statute in such case made and provided, the said mortgaged premises at public auction, for cash, to the highest bidder, at the postoffice,” etc. The statute under which the proceedings were had (Rev. St. 1858, c. 154, § 4; Rev. St. 1878, § 3526) provides that “notice that such mortgage will be foreclosed by a sale of the mortgaged premises shall be given” in the manner therein...