Buswell v. Peterson

Cole, J. In this case the defendant undertook to discharge his notes pendente lite, by conveying land to the plaintiff’s wife. It seems to us idle to claim that a payment made under such circumstances was one made in good faith. The defendant was bound to know that the plaintiff claimed to be the owner of the notes, because the action to foreclose the contract for their nonpayment was commenced some months before this transaction took place. To our minds the evidence abundantly warrants the finding of the learned circuit court, that this agreement that land was to be conveyed to the wife in payment of the notes was one made in fraud of the plaintiff, and without his knowledge or consent. In ordinary cases, possession of a promissory note payable to bearer is presumptive evidence that the holder is the proper owner or lawful possessor. But that rule cannot apply here, where the defendant was chargeable with knowledge that the notes did not belong to the wife. The question, upon the facts, is too plain to admit of doubt or discussion. It is equally clear that the court was right in excluding the testimony offered to prove what Mrs. Buswell claimed when she presented the notes for payment. Her declarations could not bind the plaintiff, unless she was acting as his agent in the matter. It was not proposed to show that she was acting as his agent when she made the statements, but merely that she claimed to own and have an interest in the notes, and that she claimed that she acted with the knowledge and consent of the plaintiff. This is the offer; and it is very clear such evidence was not competent. The judgment is not open to the objection taken to that in Landon v. Burke, 36 Wis., 378. There the sheriff was author [88] ized, upon a certified copy of the judgment, to remove the defendant from the premises, and to put the plaintiff in the possession. thereof, without any application to the court. In the present case the plaintiff will he compelled to apply to the court for other process to place him in possession in execution of the judgment. By the Court. — The judgment of the circuit court is affirmed.