Humphrey v. Plumer

49 N.W. 819, 80 Wis. 246, 1891 Wisc. LEXIS 190

• Court: Wisconsin Supreme Court
• Decided: September 29, 1891
• Status: Published

Opinion

Cassoday, J.

We are asked to reverse the judgment on the sole ground that the findings of fact are against the clear preponderance of the evidence. The testimony is voluminous. We have read it all. We haye also carefully considered the brief and able argument of counsel for the plaintiffs. It is only permissible here to state our views of the case in a general way.

The suit of Willard v. Comstock, 58 Wis. 565, was commenced in the name of Willard and ten other tax-payers of Lincoln county, as well in their own behalf as in that of other tax-payers in the county, similarly interested. Silver-thorn c& Hurley appear to have been employed to commence the same by Plumer, Quaw, Yaughn, and Moore, personally, and they afterwards left the whole management of that suit to Plumer, who, in such management, represented them and other parties; and Plumer advanced the moneys in the prosecution of that suit. Prior to the commencement of that suit — August.11, 1882 — SiVoerthorn c& Hurley had commenced five ejectment suits for different parties against Comstock, and they commenced four ejectment suits thereafter. There were many other cases pending in relation to those tax titles, in which other attorneys were engaged. Comstock testified, in effect, that the Willard Case involved, perhaps, 100,000 acres of land, and the complaint in this action, verified by Comstock, alleges that the Willard suit affected “ the title to all the lemds so held under tax deeds by these plaintiffs, as aforesaid, and involving many thousands of dollars.” Since he had obtained each of,his three tax deeds on the eighty acres in question prior to the commencement of that suit, it is obvious that that eighty was thus involved in that suit. The object of that suit was to set aside the transfer to Comstock by the county of something like $75,000 worth of tax certificates obtained by him for the trifling sum of twenty-five per cent, of their face value, and which certificates were alleged to have been obtained by Comstock through fraudulent collusion with the county officers and the members of the county board, and also to set aside tax deeds obtained by him on such certificates. Willard v. Comstock, 58 Wis. 565. That case was decided by this court, November 20, 1883. Three of the ejectment suits mentioned were decided by this court, February 19, 1884. Plumer v. Clarke, 59 Wis. 646.

It appears from testimony on the part of the plaintiffs, to the effect that, in March, 1884, Wilson, one of their attorneys at St. Paul, came to Merrill to aid the local attorneys in preparing for the trial of the Willard Case in the following April; that the attorneys for the plaintiffs in that suit proposed a settlement, so far as the interests they represented were concerned; that it ivas getting close to the trial of the Willard suit, and, if there was going to be a settlement, they desired to know it at once; that the result was an interview at Wausau between them and Plumer, Silverthorn, and Hurley; that in that interview they were informed generally what the latter might be willing to do; that Wilson was satisfied with their proposition, except as to the amount of money to be paid; that Wilson then wrote or telegraphed Comstock to have the syndicate meet at St. Paul; that they all met accordingly, March 25, 1884, and made the settlement as they claimed it was made; that upon that settlement Sil/oerthorn and Hurley gave their draft op the First National Bank of Wausau, payable to Wilson or order, for $756.16. Neither Wilson nor Plumer was sworn. Silverthorn and Hurley each testify, in effect, that in the interview at Wausau, Friday, March 21,1884, Plmmer made out a list of the lands covered by tax titles, which he and they insisted were to be conveyed to him in case of settlement, and that, upon being copied by them, the same was delivered to Wilson, and included the lands in question, and that the same list so made out by Plumer was present and in the possession of Wilson at the time of the settlement at St. Paul. They each admit that the land in question was spoken of there as’ belonging to the “ Gray heirs; ” but they, in effect, each deny that they represented that the “ Gray heirs ” were minors, or that they represented them, or that they were the original owners, or that they made any misrepresentations whatever. They further state, in effect, that.that term, “Gray heirs,” was so used simply because Plumer had so used it; and that when it was so used there was no inquiry as to who such heirs were, or where they were, or their ages. Comstock admits, in effect, that Wilson was the business man of the concern; that he might have had a list of the lands at the time of the settlement there at St. Paul, and that he had the paper in his hand; that the identical descriptions of the lands brought to St. Paul by Silverthorn and Hurley were put into the deed to Plumer • that he presumed that Wilson had them before they came to St. Paul; that the terms of the settlement Were arrived at very quickly; that they did not have to -go over any details or negotiations, particularly, for any length of time; that their counsel had a description of their lands, and'were familiar with the matter, and looked after the title and the controversy; that he had a list of the lands at St. Paul, independent of any list brought there by Silverthorn and Hurley; that when they took tax deeds upon lands they did the best they could, as a rule, to know who the original owners were; that he guessed they went to the land office to see who made the entry; that they supposed they were iron lands; that they were called such in that region. The list of lands made out by Plumer, as stated, is in evidence, and the particular eighty in question is headed: “ Gray heirs {not in suit).” It is understood by this that that eighty was not involved in any ejectment suit. From a certified copy of records in the land office it would appear that the eighty was entered and patented in the name of “ Thomas B. Gray” or “ Grey,” instead of “ Thomas B. Guy,” who is conceded to have been the original owner. At the time of the settlement the eighty does not seem to have been regarded of any special value by Comstock or Wilson or any of those represented by them; but it is said that it has since been ascertained to be of very great value. The prime motive which seems to have induced Comstock and Wilson and those represented by them to make the settlement was to procure, as far as possible, the abatement of the Willard suit, then about to be forced to trial, by making a full and satisfactory settlement with all who had been instrumental in the prosecution of that case. It appears that Comstock subsequently settled with the county, and paid it some $40,000 for such certificates in addition to what he had previously paid.

Such being our general view of the case, we are unable to say that the findings of the trial court are against the weight of evidence. On the contrary we think they are fairly supported by the preponderance of the evidence. This makes it unnecessary to consider the question of law argued by counsel for the defendants to the effect that in no event would the plaintiffs be entitled to .a partial rescission of the settlement.

By the Court.— The judgment of the circuit court is affirmed.