Nau v. Brunette

The following opinion was filed April 9, 1891: Lyon, J. The plaintiffs claim title to the land in controversy in this action through two distinct lines of conveyances: (1) They claim title thereto under the mortgage executed by Augustin and wife to Pauquette; the assignments thereof by Pauquette to Cormier and Wigger, and by them to Joel S. Eisk; the foreclosure of such mortgage by Eisk, and his purchase of the land at the foreclosure sale; the devolution of his title upon William J. Eisk, by the death of Joel S., the probate of his will, and the partition proceedings; the conveyance by William J. Eisk to John Brunette; and the mortgage executed by John and — 668 — wife to plaintiffs; the foreclosure thereof; the sale of the land to plaintiffs on such foreclosure; and the conveyance thereof to them by the sheriff who made such sale. (2) They also claim title under the quitclaim deed of the land executed by Augustin and wife to John, April 4, 1870; the mortgage from John and wife to them; and the proceedings thereunder, as above stated. I. The validity of the title to the land in suit, which it is claimed vested in Joel S. Fisk under the foreclosure of the Pauquette mortgage and his purchase thereof at the foreclosure sale, is denied upon two grounds. They are (1) that the mortgage debt was paid to Pauquette, and (2) that the notice of such sale is fatally defective. 1. All the testimony in support of the claim that the mortgage debt was paid to Pauquette is the following, given by Augustin: “ In 1857 I made a mortgage on this land to Pauquette. I paid it, but he never gave me the mortgage back. He died, and they sold it to Fisk after that. I paid it with money and work, and the last payment I gave him my horse,— the last horse I had; finished up $240.” The record shows that Pauquette himself assigned this mortgage to Cormier and Wigger, May 16, 1864, who assigned it to Fisk the next day, and the assignments were immediately recorded. This is a conclusive refutation of Augustin’s statement that such assignments were made after Pauquette died. There is no testimony showing when he died, and no other testimony of his death. It does not appear when Augusi/vn paid the mortgage. It is just as probable that he paid it after Pauquette assigned it as that he did so before. There is no legal presumption one way or the other. If paid after the execution and recording of the assignment, it was inoperative to defeat the mortgage in the hands of the assignee. The testimony is therefore entirely insufficient to prove an effectual payment of the mortgage debt. Besides, such testimony was incompetent. — 669 — The plaintiffs derive their title to the lands through Pau-quette, who the defendant swears is dead. The alleged payment of the mortgage consisted of a series of personal transactions between defendant and Pauquette. The statute declares that Augustin shall not be examined as a witness to such transactions. E. S. sec. 4069. 2. The notice of sale reads as follows: “ Notice is hereby given that by virtue of the power of sale contained in said mortgage, and in pursuance of the statute in such ease made •and provided, the said mortgaged premises at public auction, for cash, to the highest bidder, at the postoffice,” etc. The statute under which the proceedings were had (E. S. 1858, ch. 154, sec. 4; E. S. 1878, sec. 8526) provides that “ notice that such mortgage will be foreclosed by a sale of the mortgaged premises shall be given” in the manner therein prescribed. The alleged defect in the notice is the omission therefrom of the words “ will be sold ” immediately after the word “ premises.” The words “ at public auction, for cash, to the highest bidder” convey to the mind the idea of a sale. They unmistakably imply a sale. No one could possibly be deceived or misled by the omission, or fail to learn from the notice that a process was to take place at public auction in respect to the mortgaged premises, which would transfer the property to the highest bidder, for which such bidder would be required to pay a consideration in cash, measured by his bid. Such process is a sale, of the property, and can be nothing else. The observations in the opinion in St. Croix L. & L. Co. v. Ritchie, 73 Wis. 409, upon a similar question, are applicable here. It must be held that the omission does not affect the validity or sufficiency of the notice. It was suggested, rather than argued, by the learned counsel for defendant, that the notice 'of sale is also defective, in that it does not state the mortgage “ will be foreclosed by a sale,”’ etc. This objection was overruled in — 670 — Maxwell v. Newton, 65 Wis. 261. It requires no discussion. It was further suggested that no deed of the premises was executed to Fisk on such sale. None was required to vest the title in him. He was the assignee and holder of the mortgage. The affidavits of the publication of notice of sale and of the circumstances of the sale (which are in evidence and unchallenged) are the equivalent of a deed when the holder of the mortgage is the purchaser. R. S. 1858, ch. 154, sec. 20; R. S. 1878, sec. 3541. We are thus brought to the conclusion that, at the expiration of one year from the foreclosure sale, that is, on April 21, 1867, the absolute title in fee to the land in suit vested in Joel S. Fisk. (See secs. 11,12, ch. 154, R. S. 1858, as amended by ch. 186, Laws of 1859, as to time of redemption.) It is maintained that Augustin Brunette was in the actual and adverse possession of the land from the time Joel S. Fisk obtained title thereto, and so continued until the commencement of this action, more than twenty years afterwards. This subject will be considered later in this opinion. It is sufficient to say here that no such adverse possession could possibly have ripened into a'title before the execution of the quitclaim deed by Augustvn, and wife to John on April 4, 1870. II. The validity of the quitclaim deed of April 4, 1870, is challenged upon two grounds: (1) It is claimed that, when Augustvn executed the same, he supposed it was a lease to John for two years of the land described in it; and (2) that, if it is a valid deed, Augustin has been in the actual, continuous, and adverse possession of the land for a sufficient length of time to defeat the deed and give him title to the land. Much of the testimony in the case is directed to the first of these propositions. Augustvn testified that when he signed such'deed he supposed he was signing a .lease of the land for two years to John; that he had given directions for the drawing of such a lease; that he could — 671 — neither read nor write; and that he did not know until many years thereafter that the instrument he executed was a deed and not a lease. This testimony of Augustvn is practically unsupported by any other testimony in the case. True, one Michel, a witness for defendant, testified to a conversation which he had with John Brunette in regard to the land, in the year the deed was executed or the next year, in which John said, “Don’t say anything; I got him tight.” We infer that this remark refers to the quitclaim deed. This witness was detailing a casual conversation which occurred nearly twenty years before, and in which he had no special interest. Besides he admitted that he is-not on friendly terms with John, but is with Augustin. Such testimony is of very little value, and scarcely amounts to corroboration of the story of Augustin. On the other hand, there is much testimony going to show that Augusim, knew perfectly well that the instrument he executed conveyed the land to John. That of Mr. Hudd, who drew the deed and took the acknowledgments of the grantors, is very strong and convincing against the claim of Augxisti/n. The learned circuit judge held that, inasmuch as the defendant sought to defeat a deed executed by himself, the rule of several cases in this court, as stated in Harter v. Christoph, 32 Wis. 249, is applicable. It is there said: “ It would be an extreme case which would justify the court in reforming or defeating a written instrument for a mistake therein, upon the uncorroborated testimony of a party to it, although such testimony were uncontradicted.” Kent v. Lasley, 24 Wis. 654; McClellan v. Sanford, 26 Wis. 595. We think the rule is applicable to this case, which is a much stronger one for its application than are any of the cases above cited, for the testimony of Augustin is practically uncorroborated and is strongly contradicted. It is imma672 ferial that the action is ejectment to recover the land, instead of an action in equity to reform the instrument. The result to the parties is the same in either case. It may be observed that Kent v. Lasley, 24 Wis. 654, was also an action of ejectment. Under all the authorities, the most clear and convincing proof is required thus to overturn and defeat a solemn written instrument, deliberately executed by the parties thereto. We agree with the circuit judge that the testimony is entirely insufficient to work such a result. Had the question been submitted to the jury, and had they found that Augustin executed the instrument in ignorance of its real contents, supposing it to be a lease, the verdict could not be allowed to stand. In such condition of the testimony, it is proper for the court to direct a verdict. The facts bearing upon the claim of adverse possession are briefly these: Immediately after the execution of the deed of April 4, 1870, Augustin removed from the land conveyed thereby, and John went into the actual possession thereof. Two years later, as Atogustvn himself testifies, John moved him back into a house on the land thus conveyed, but not on the land in suit, and afterwards helped him build a small house on the land in suit, into which Augustin moved and has resided therein ever since, cultivating about an acre of land about the house for- a garden, and sometimes pasturing stock on the land in suit, but doing no other acts evincing a claim of title to the land. The evidence clearly shows, in fact is practically undisputed, that his possession during all that time was by the permission and sufferance of John. Such a possession is not adverse, but must “ be deemed to have been under and in subordination to the legal title.” R. S. sec. 4210; Schwallback v. C., M. & St. P. R. Co. 69 Wis. 292; S. C. 73 Wis. 137. Upon full consideration of the whole case, we are of the — 673 — opinion that the court properly directed a verdict for the plaintiffs. The judgment of the circuit court must therefore be affirmed. By the Court.—Judgment affirmed. A motion for a rehearing was denied June 3, 1891.