Schmidt v. Deegan

• Decision Date: 20 September 1887
• Citation: Schmidt v. Deegan, 69 Wis. 300, 34 N.W. 83 (Wis. 1887)
• Parties: SCHMIDT v. DEEGAN AND ANOTHER.
• Court: Wisconsin Supreme Court

69 Wis. 300

34 N.W. 83

SCHMIDT

v.DEEGAN AND ANOTHER.

Supreme Court of Wisconsin.

September 20, 1887.

Appeal from circuit court, Ozaukee county.

S. S. Barney, for respondent.

Gerpheide & McKenna, for appellants.

COLE, C. J.

We fail to see any force in the objection that the plaintiff has no legal capacity to sue, but that this action should have been brought by the personal representative of the deceased.The plaintiff is a feme sole, has the right to sue in her own name where her interest is involved; besides, this is not an action to recover damages for the wrongful killing of her husband.Of course, such an action, under the statute, would have to be brought in the name of the personal representative of the deceased.But this action is to recover the note and mortgage which the defendant executed in settlement of the damages for wrongfully killing plaintiff's husband.It seems to us there can be no doubt but the plaintiff had authority to settle with the defendant for these damages.She was the beneficiary under the statute, and would be entitled to any damages which the personal representative might have recovered in an action brought for her benefit.We can therefore see no possible objection to sustaining a settlement made by her, and giving her the full fruits of it.If the allegations of the complaint show that the note and mortgage belong to her, why may she not bring suit to secure possession of them?It is well settled that a court of equity will direct the delivery of title deeds and other instruments to the party entitled to them.Story, Eq. Jur. §§ 703-705, and 906.If the facts stated show that the note and mortgage are improperly withheld from the plaintiff, and that she has an equitable and legal right to them, she should have a judgment for the specific delivery of them.Now recurring to the complaint, we find it alleged that the defendant, Deegan, willfully killed the plaintiff's husband; that a suit was about to be instituted against him to recover damages for causing such death; that Deegan heard of this premeditated suit, and made overtures of settlement with the plaintiff; that thereupon it was agreed by and between Deegan and the authorized agent of the plaintiff that Deegan should make, execute, and deliver, to one Schwin, in trust for the plaintiff, a promissory note in the sum of $1,550, due one year from date, and a mortgage to secure the payment of the same, which the plaintiff agreed to accept in full satisfaction and settlement of the claim against Deegan for the killing of her husband.Nothing is alleged tending to discredit the bona fides and fairness of this settlement; and if the plaintiff had the right to make it,--as we think she had,--there is no reason why it should not be enforced.We have already said that the plaintiff was the real party in interest in the cause of action for the unlawful killing of her husband, and that any recovery of damages by the personal representative would have been for her exclusive benefit.She therefore had the right to settle the claim for her injury or pecuniary loss, and it seems needlessto observe that, prima facie, the settlement was founded upon an adequate legal consideration.And this brings us to the real difficult question in the case, namely, whether the note and mortgage were delivered so as to give effect to them in law, and vest the plaintiff with the right to their possession.

It is in effect alleged that on the ninth of September, 1886, in Ozaukee county, Deegan made and executed a note and mortgage according to agreement, and at the time and place delivered these securities to his co-defendant, Agez, to deliver the same to the plaintiff, when the plaintiff should execute and deliver to the depositary a good and sufficient release and satisfaction for her claim for damages against Deegan; that the plaintiff was not personally present at the time of the execution of the note and mortgage, and Deegan desired to have the release signed by the plaintiff in person.That thereafter, on the thirteenth of September, 1886, the plaintiff did make and execute to Deegan a full and complete release and satisfaction, in writing, of her claim against him, and offered the same to Agez, and demanded of him the delivery of the note and mortgage, which Agez refused to deliver, for the reason that he had been instructed by Deegan not to deliver them.It is further alleged that the trustee afterwards assigned to the plaintiff all his right and title to the note...