Bruce v. Miller

Lyon, J. The questions involved in this appeal require but little discussion. Mrs. Posten testified on the trial that she did not know'the land in question was included in either of the two mortgages until 1878, when the defendant Miller, who then owned said mortgages, said to her husband and herself that he did not know the land was so included or how it came to be included; that it did not belong to him and he did not want it; and that if they would quitclaim it to him and cut off mortgages he would quitclaim right back. Also that the quitclaim to Miller was made on the faith of that promise, and that she subsequently requested him to make the promised conveyance, which he refused to do. There was no other testimony introduced on behalf of the plaintiff, except the record and testimony in an action theretofore brought by Mrs. Posten against Miller to redeem the Pond du Lac farm, which had [407] been sold on the foreclosure by Miller of a certain mortgage upon it, in which action the plaintiff was defeated. The record, and the testimony contained in it, does not seem to have any particular bearing upon this case. On the other hand, the defendant Miller denied making any promise at any time to reeonvey the land, and testified that the consideration of the quitclaim deed thereof to him was his release of certain property in the city of Ripon from the lien of a mortgage upon it owned by Miller, and executed by Posten and wife, which Ripon property Posten had theretofore conveyed by deed of warranty. Also that the object of such conveyance of the forty acres was to save the expense of a foreclosure of the mortgages. Judge Reed, the mortgagee named in the mortgages on the forty acres in question, testified that Posten well knew the forty acres was included in the mortgages; and, further, that he was present at the negotiations which resulted in the conveyance of the forty acres to Miller, and that Miller made no promise to reconvey; and such quitclaim deed was executed for the purpose of saving the expenses of a foreclosure, and in consideration of the release by Miller of the Ripon property, as testified to by him. Other witnesses were called by the defendants, who to some extent corroborated the testimony of Miller and Reed. Thus it will be seen that the testimony is in direct conflict. The learned circuit judge before whom the witnesses were examined rejected the testimony of Mrs. Posten, and gave credit to that introduced on behalf of the defendants. It was entirely competent for him to do so. To disturb his findings of fact would be to overrule an uninterrupted line of decisions by this court to the effect that the findings of the trial court will never be disturbed, unless they are against a clear and satisfactory preponderance of evidence; Were we called upon to express an opinion on that subject, we should be inclined to say that the preponderance of evi [408] dence supports such findings. Hence, without determining the effect of the statute of frauds, or of the alleged laches of Mrs.- Posten upon the case, we must affirm, the judgment of the circuit court. By the Oowrt- - Judgment affirmed.