Whinfield v. Trustees of the Diocese of Fond du Lac

Wisconsin Supreme Court

Whinfield v. Trustees of the Diocese of Fond du Lac

145 N.W. 1100, 156 Wis. 472, 1914 Wisc. LEXIS 130

DecidedMarch 17, 1914

StatusPublished

This text of 145 N.W. 1100 (Whinfield v. Trustees of the Diocese of Fond du Lac) 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

Whinfield v. Trustees of the Diocese of Fond du Lac, 145 N.W. 1100, 156 Wis. 472, 1914 Wisc. LEXIS 130 (Wis. 1914).

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Opinion

Wiwslow, O. J.

In this case one of two innocent parties must suffer, and the only question to be'determined is which one. That depends entirely upon the title to the note and mortgage in suit, and that question does not seem difficult. When the note and mortgage were executed they were made payable to the plaintiff as security for the repayment of moneys advanced from the Whinfield estate. There can be no doubt, therefore, that the plaintiff originally had both the legal and equitable title. How then did the diocese acquire title? Not by assignment or indorsement of the note, for neither is shown. Not by delivery of possession, for the possession of Sallad e was just as much plaintiff’s possession as it was defendants’, and the mere exhibition of them to the auditing committees at the time of the diocesan councils cannot be called a change of possession. The diocese has no greater equity than has the plaintiff. Both had advanced money to pay for the securities and the money of both had been used by the unfaithful trustee, who deceived his principals and juggled the securities back and forth as he was called on by either one to account for his stewardship. The equities being evenly balanced, the party who has the legal title must inevitably prevail, and that party is the plaintiff.

By the Court. — Judgment affirmed.

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Wiwslow, O. J.

In this case one of two innocent parties must suffer, and the only question to be'determined is which one. That depends entirely upon the title to the note and mortgage in suit, and that question does not seem difficult. When the note and mortgage were executed they were made payable to the plaintiff as security for the repayment of moneys advanced from the Whinfield estate. There can be no doubt, therefore, that the plaintiff originally had both the legal and equitable title. How then did the diocese acquire title? Not by assignment or indorsement of the note, for neither is shown. Not by delivery of possession, for the possession of Sallad e was just as much plaintiff’s possession as it was defendants’, and the mere exhibition of them to the auditing committees at the time of the diocesan councils cannot be called a change of possession. The diocese has no greater equity than has the plaintiff. Both had advanced money to pay for the securities and the money of both had been used by the unfaithful trustee, who deceived his principals and juggled the securities back and forth as he was called on by either one to account for his stewardship. The equities being evenly balanced, the party who has the legal title must inevitably prevail, and that party is the plaintiff.

By the Court. — Judgment affirmed.

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Bluebook (online)

145 N.W. 1100, 156 Wis. 472, 1914 Wisc. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whinfield-v-trustees-of-the-diocese-of-fond-du-lac-wis-1914.