Smith v. Smith
| Decision Date | 19 April 1881 |
| Citation | 8 N.W. 868,51 Wis. 665 |
| Parties | SMITH v. SMITH AND OTHERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Walworth county.
The plaintiff, Abbott H. Smith, claims title to the property in question by virtue of a deed to him from his grandfather, Benjamin Holmes, executed in August, 1878. The defendant Charles W. Smith is the father of the plaintiff and the son-in-law of Benjamin Holmes, and he claims title to the same property by virtue of a deed purporting to be executed in April, 1878, and to set aside which, as a cloud on the plaintiff's title, this action was brought, on the ground that said last-mentioned deed had never in fact been executed with knowledge or understanding of the contents by Holmes, but was an imposition upon him by Charles W., effected by false and fraudulent pretences, and was without any consideration. The complaint also alleged that the deed to the plaintiff was made in pursuance of a promise made by said Holmes many years before, in consideration of the natural love and affection which he entertained for the plaintiff, and the sum of one dollar to him paid. Upon the hearing there was evidence on the part of the plaintiff tending to show that Holmes did not read the deed so given to Charles W. at the time of its execution, and there was also evidence on the part of the defendant tending to show that he did read it, and that his name was signed by the scrivener in his presence and with his assent; but there was no evidence that the deed was read to him. It also appeared that Holmes died November 4, 1878, at the age of 94 years; that some time prior to the deed to the defendant, Holmes had given Charles W. another deed of the same property, to be held in trust for the plaintiff for a number of years, and then to be given to the plaintiff, and which deed had been destroyed by Holmes; that after April, 1878, Holmes had lost confidence in Charles W., and refused to let him do his business, and that Charles W., after the last deed to him, had referred to the property as belonging to the plaintiff; and that the scrivener, John A. Smith, who drew the deed and witnessed it, and took the acknowledgment, had for some time acted as attorney for Holmes, and was also a nephew, atttorney, and witness for the defendant. In February, 1880, the court found in favor of the validity of the deed to Charles W., made in April, 1878, and against the plaintiff, and judgment was ordered accordingly. In June, 1880, the plaintiff moved for a new trial, basing his motion upon the complaint, a copy of the phonographic reporter's minutes of the evidence taken and filed in the action, and seven affidavits, in effect, that Holmes had for some years immediately prior to his death been wholly unable to read writing or print; and also an affidavit of the plaintiff, to the effect that the facts stated in such affidavits were unknown to him at the time of the trial, and was newly-discovered evidence. July 20, 1880, the court granted the motion, with costs to abide the event, and from which order the defendant appealed.H. S. Winsor & Son, and J. V. Quarles, for respondent.
John S. Smith and H. F. Smith, for appellants.
This motion was in time. The statute, among other things, provides that...
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