Bill v. Stoll

Wisconsin Supreme Court

Bill v. Stoll

12 N.W. 444, 55 Wis. 216, 1882 Wisc. LEXIS 122

DecidedMay 10, 1882

StatusPublished

This text of 12 N.W. 444 (Bill v. Stoll) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bill v. Stoll, 12 N.W. 444, 55 Wis. 216, 1882 Wisc. LEXIS 122 (Wis. 1882).

Pincite

Opinion

Oassoday, J.

The answer is purely defensive. It denies title in the plaintiff. It disclaims both title and possession in the defendant. It asserts possession in the association or colony, but fails to name, by way of counterclaim or otherwise, any legal or equitable owner or owners, or to allege that the defendant occupied under any such owner or owners. The whole case, therefore, turned upon the delivery or nondelivery of the deed to the plaintiff, and the possession of the premises.

The first question submitted to the jury involves the vital issue in the case. The second question submitted seems to be a mere legal conclusion from the first, and the propriety of its submission at all may be doubtful. The third question submitted involves four alternatives, so that it is impossible to tell which the answér “Tes” refers to; and hence it may be obnoxious to the criticism in Jewell v. C., St. P. & M. Railway Co., 54 Wis., 610, and cases there cited. But the determination of this appeal must depend upon whether the court was correct in allowing the plaintiff to testify as to conversations, dealings and transactions had by him personally in relation to the land, and the consideration therefor, with Oschwald, under or through whom the plaintiff claims title. This class of evidence became peculiarly significant, [221]*221since the question, was, in effect, submitted to the jury, whether such delivery of the deed to plaintiff was effected by delivery to or through Oschwald. We are clearly of the opinion that the class of testimony indicated should' have been excluded. The statute clearly provides that no party shall be examined as a witness in respect to any transaction or communication by him personally with a deceased person, in any civil action in which the opposite party derives his title or sustains his liability to the cause of action through or under such deceased person. Section 4069, R. S. Here the defendant “ sustains his liability to the cause of action,” if at all, by having charge of men cultivating the land under “ Eather Oschwald,” as the head of the colony. The action is the same in effect as though it had been brought against “ Eather Oschwald ” in his life-time; in which case, we apprehend, counsel would not have contended that, had the supposed action been revived in the name of the defendant, as administrator of Oschwald, the plaintiff would have been a competent witness in his own behalf as to such per- ■ sonal transactions and communications by him with the deceased. And yet, we think, there is no distinction in principle between the supposed case and the one here presented. Assuming that Kunzweiler’s version of the execution of the deed by him, and the subsequent delivery thereof to Oschwald, was correct, and that the deed was not executed in pursuance of any agreement or understanding with the plaintiff, and since the undisputed evidence shows that after Oschwald obtained the deed he continued to hold the same until his death, it would seem to follow that there could have been no actual delivery.

If this is so, then it would seem that one object of the evidence referred to was to raise an inference in the mind of the jury that Eather Oschwald, as the head of the colony, obtained the deed from Kunzweiler for and in behalf of the plaintiff, and hence that the delivery to him was, in effect, a [222]*222delivery to the plaintiff. Upon that theory it may be -doubtful, independent of the statute, whether the plaintiff can he allowed to testify in his own behalf to transactions and communications between himself and his own agent or equitable grantor; but especially is this so under the statute as against one who claims to have committed the acts complained of under the general authority of the same Eather Oschwald. But as the court puts this decision upon the statutory objection alone, it is unnecessary to pursue the subject further.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

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Oassoday, J.

The answer is purely defensive. It denies title in the plaintiff. It disclaims both title and possession in the defendant. It asserts possession in the association or colony, but fails to name, by way of counterclaim or otherwise, any legal or equitable owner or owners, or to allege that the defendant occupied under any such owner or owners. The whole case, therefore, turned upon the delivery or nondelivery of the deed to the plaintiff, and the possession of the premises.

The first question submitted to the jury involves the vital issue in the case. The second question submitted seems to be a mere legal conclusion from the first, and the propriety of its submission at all may be doubtful. The third question submitted involves four alternatives, so that it is impossible to tell which the answér “Tes” refers to; and hence it may be obnoxious to the criticism in Jewell v. C., St. P. & M. Railway Co., 54 Wis., 610, and cases there cited. But the determination of this appeal must depend upon whether the court was correct in allowing the plaintiff to testify as to conversations, dealings and transactions had by him personally in relation to the land, and the consideration therefor, with Oschwald, under or through whom the plaintiff claims title. This class of evidence became peculiarly significant, [221]*221since the question, was, in effect, submitted to the jury, whether such delivery of the deed to plaintiff was effected by delivery to or through Oschwald. We are clearly of the opinion that the class of testimony indicated should' have been excluded. The statute clearly provides that no party shall be examined as a witness in respect to any transaction or communication by him personally with a deceased person, in any civil action in which the opposite party derives his title or sustains his liability to the cause of action through or under such deceased person. Section 4069, R. S. Here the defendant “ sustains his liability to the cause of action,” if at all, by having charge of men cultivating the land under “ Eather Oschwald,” as the head of the colony. The action is the same in effect as though it had been brought against “ Eather Oschwald ” in his life-time; in which case, we apprehend, counsel would not have contended that, had the supposed action been revived in the name of the defendant, as administrator of Oschwald, the plaintiff would have been a competent witness in his own behalf as to such per- ■ sonal transactions and communications by him with the deceased. And yet, we think, there is no distinction in principle between the supposed case and the one here presented. Assuming that Kunzweiler’s version of the execution of the deed by him, and the subsequent delivery thereof to Oschwald, was correct, and that the deed was not executed in pursuance of any agreement or understanding with the plaintiff, and since the undisputed evidence shows that after Oschwald obtained the deed he continued to hold the same until his death, it would seem to follow that there could have been no actual delivery.

If this is so, then it would seem that one object of the evidence referred to was to raise an inference in the mind of the jury that Eather Oschwald, as the head of the colony, obtained the deed from Kunzweiler for and in behalf of the plaintiff, and hence that the delivery to him was, in effect, a [222]*222delivery to the plaintiff. Upon that theory it may be -doubtful, independent of the statute, whether the plaintiff can he allowed to testify in his own behalf to transactions and communications between himself and his own agent or equitable grantor; but especially is this so under the statute as against one who claims to have committed the acts complained of under the general authority of the same Eather Oschwald. But as the court puts this decision upon the statutory objection alone, it is unnecessary to pursue the subject further.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

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12 N.W. 444, 55 Wis. 216, 1882 Wisc. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bill-v-stoll-wis-1882.

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