Sylvester v. Guernsey

Dixon, C. J. As said by counsel, the practice in this case seems to have been somewhat anomalous. We think, under the circumstances, that the finding of the jury must be considered a part of the finding of the court; and, this being so, it appears from the finding that the assignment of the judgment as to that part of it represented by the costs, was obtained by fraud; but it does not appear that any valuable consideration whatever passed from the plaintiff to Carrier, or from Carrier to Everett, for that part of the judgment. The finding must sustain the judgment, or the judgment will be reversed. Blossom v. Ferguson, 13 Wis., 75. Is this finding sufficient for that purpose? We think not. It being found that the assignment as to the costs was obtained [572] by fraud, we think the judgment here cannot be sustained, unless it is furthermore found that the plaintiff paid a full and valuable consideration for that part of the judgment so fraudulently procured to he assigned. There is no such finding, and no proof to that effect was introduced or offered, as appears from the bill of exceptions, which contains all the testimony. "We think the case in this respect is governed by a principle similar to that which prevails in actions upon negotiable paper which has been procured by fraud and subsequently transferred to some third person. It stands on a footing at least as favorable as that of negotiable paper, if not more so. The fraud being shown, it is then incumbent on the plaintiff to show under what circumstances and for what value he became the holder of the paper. Edwards on Bills & Rotes, 686. So here, the fraud having been established, the burden of proof was on the plaintiff to show that he'paid value for that part of the judgment the assignment of which was obtained by fraud. The plaintiff not having shown this, and no fact of the kind being found, it follows that the judgment must' be reversed, and the cause remanded, with directions that it be dismissed. By the Court. — So ordered.