1. In Wisconsin, the fee of mortgaged premises rests in the
mortgagee or assignee only after foreclosure and sale, not upon the
mere default of the mortgagor.
2. A deed in fee executed by the mortgagor subsequent to the
mortgage deed but prior to the foreclosure, passes the legal
title.
3. But if the mortgagee is in lawful possession of the mortgaged
premises after condition broken, he will not be turned out until
the debt is paid.
4. Possession obtained by the mortgagee through an arrangement
with the tenant of the mortgagor whose lease has expired, without
the consent of the mortgagor, is not lawful possession.
5. It is not necessarily error for a court to instruct the
jury
Page 67 U. S. 576
that if the testimony of a certain witness is believed, it will
establish a specified fact, leaving to the jury to believe or
disbelieve the witness.
6. The propriety of such instruction depends upon the fullness,
certainty, and clearness of the testimony of the witness upon the
point in issue.
7. A bill of exceptions which alleges that the instructions of
the court laid too large a stress upon the testimony of a
particular witness should embody the testimony at length or so
refer to it as to make it part of the record -- otherwise a court
of error must presume that it justified the instruction.
MR. JUSTICE MILLER.
This was an action of ejectment in the District Court of the
United States for the District of Wisconsin in which the defendants
in error obtained a judgment against the plaintiff in error for the
possession of block 70, of the school section of the City of
Racine.
The legal title to this block was in David L. Barton on the 24th
April, 1851, and on that day he made a mortgage deed conveying said
block to Floyd P. Baker to secure the payment of a note for $1,400,
due one year after date, and on the next day, the 24th of the same
month, he conveyed it in fee to Clifford A. Baker.
The plaintiffs on the trial exhibited a regular chain of title
from Clifford A. Baker to themselves, and the defendant proved
himself to be the owner and holder of the note and mortgage above
recited, and being in possession of the block sued for, claimed the
right to hold it until the debt was paid. It appears further by the
bill of exceptions that plaintiffs traced their title through one
Charles R. Dean, and testimony was given tending
Page 67 U. S. 577
to show that Charles R. Dean was a fictitious person who never
had any real existence. The only other fact shown by the bill of
exceptions necessary to an understanding of the case is the
statement of Thomas S. Baker that from the summer of 1853 until the
spring of 1856, he held possession of the property under a lease
from plaintiffs, and then surrendered it to the defendant without
the knowledge or consent of plaintiffs.
The defendant on the trial excepted to the three propositions
following, contained in the charge of the court to the jury:
"1. If the defendant procured the possession and occupies it in
pursuance of an arrangement, in the spring of 1856, with T. S.
Baker without the consent of the mortgagor or of these plaintiffs,
then he is not lawfully in possession."
"2. If the testimony of Clifford A. Baker is believed, the deed
[to Charles R. Dean] passed the title from him."
"3. The legal title, in the opinion of the court, on the face of
the deeds, is in the plaintiffs."
In examining the questions arising on these exceptions, it will
be convenient to take up first the one last mentioned. It is the
province of the court in trials by jury to construe instruments of
writing and determine their legal effect, and if it was apparent
that on the face of the deeds the legal title was in plaintiffs, it
was not only the right of the court but its duty to so instruct the
jury. Is it true, then, that the deeds read in evidence showed the
title in plaintiffs?
The plaintiff in error maintains, that by the mortgage deed of
D. L. Barton of July 23, 1851, the legal title passed to Floyd P.
Baker, and that by the deed made July 24, to Clifford A. Baker,
nothing passed but the equity of redemption, and if he is correct
in this, the instruction was error.
Numerous authorities from English and American decisions are
cited by counsel on both sides in reference to this point, but in
the view which we take of the matter, they become of little value
except those of the Wisconsin court. These deeds were both made in
Wisconsin in reference to land lying in that state, and in their
construction must be governed by its laws. The Revised Statutes of
Wisconsin, chap. 141, sec. 28, enact
Page 67 U. S. 578
that
"No action of ejectment shall hereafter be brought by a
mortgagee or his assigns or representatives for the recovery of the
possession of the mortgage premises until the equity of redemption
shall have expired."
Chap. 154, sec. 11, provides, that
"In every case, the mortgagor may retain full possession, in
trust for the mortgagee or purchaser, of all premises mortgaged by
him
until the title shall absolutely vest in the purchaser
of such mortgaged premises according to the provisions of this
chapter."
The Supreme Court of Wisconsin, in the case of
Wood and Moon
v. Trask, 7 Wis. 512, speaking of these provisions and perhaps
others
in pari materia, says:
"Our statute has essentially changed the rule of the common law
in relation to the position of the fee of the mortgaged premises
after condition broken. The fee does not vest upon default of the
mortgagor in the mortgagee or his assignee. The fee only vests upon
sale and foreclosure."
In
Tallman v. Ely, 6 Wis. 257, the same court said:
"Our statute provides that the mortgagee shall not bring his
action of ejectment before foreclosing the equity of redemption,
sec. 53, chap. 106, or in other words he must complete his title
before he shall be permitted to recover at law upon the strength of
it."
These expositions of the statutes of Wisconsin are to be
followed by the federal courts as rules of construction, and from
them it results that the legal title did not pass to Floyd P. Baker
by the mortgage deed of July 23, but did pass to Clifford A. Baker
by the deed in fee made the day after.
The instruction was therefore correct.
The next error alleged is based upon that part of the court's
charge embraced in the following sentence:
"If the defendant procured the possession and occupies it in
pursuance of an arrangement in the spring of 1856 with T. S. Baker,
without the consent of the mortgagor or of these plaintiffs, then
he is not lawfully in possession."
The truth of this proposition would seem to be a necessary
corollary from the one just discussed. Indeed it would seem to be a
clearer deduction from the statutes cited than that made by the
Supreme Court of Wisconsin, in
Page 67 U. S. 579
reference to the position of the fee; for if the mortgagee has
no right to recover the possession by legal proceedings, it would
seem that he should not be permitted in any other manner to obtain
that possession against the consent of the mortgagee or the person
holding under him. We are, however, referred by counsel for
plaintiff in error to the cases of
Gillett v. Eaton, 6
Wis. 30, and
Tallman v. Ely, Wis. 257, as establishing a
contrary doctrine. A careful examination of these cases does not
sustain the proposition in favor of which they are cited to an
extent which will conflict with the instruction of the court under
consideration.
It is true, that in both of these cases, it is held that the
mortgagee lawfully in possession cannot be turned out by ejectment
brought by the mortgagor. In both the cases, the decision turned
upon the fact that the mortgagees were lawfully in possession, and
in both it is evident that the defendants originally entered with
the consent of the mortgagor, either express or implied.
The language used in the second of the cases cited -- namely
Tallman v. Ely, a part of which has already been quoted in
regard to the position of the fee -- shows very clearly the
distinction which was in the mind of the court as to the lawfulness
of the mortgagee's possession. The court said:
"Our statute provides that the mortgagee shall not bring his
action of ejectment before foreclosing the equity of redemption,
sec. 53, chap. 106, or, in other words, he must complete his title
before he shall be permitted to recover at law upon the strength of
it. Still, if he is lawfully in possession after condition broken,
he will not be turned out until his debt is paid."
This leaves still undecided the question as to what is lawful
possession, and we concur with the district court that if the
defendant in this case, although he may have been the holder of the
mortgage and the debt secured by it, obtained the possession of the
block in controversy by an arrangement with the tenant of the
plaintiffs after said lease had expired, and without their consent,
he was not lawfully in possession.
The remaining exception is to the charge of the court, "that
Page 67 U. S. 580
if the testimony of Clifford A. Baker is believed, the deed" to
Charles R. Dean "passed the title from him" (Baker). In that part
of the charge which immediately precedes the words objected to, the
court said:
"The deed of Clifford A. Baker to Charles R. Dean is alleged to
be fraudulently executed by Floyd P. Baker in the name of Clifford
A. Baker. That he used Clifford's name without authority, and that
Charles R. Dean was a fictitious person. The evidence of Botsford
shows these facts
prima facie."
It is manifest that if Charles R. Dean was a fictitious person,
plaintiffs had no title, for they claimed under a deed from him. It
is equally clear that if the testimony of Botsford showed that fact
prima facie, the testimony of any witness who proved the
existence of Dean as a real person was very important, and required
careful scrutiny, and the comments of the judge on any such
witness, or his evidence, should have been given with great caution
and should have left to the jury all that properly belonged to it.
But we are unable to see from anything in this record that the
court exceeded its functions in the charge. It was certainly proper
that it should call attention to Baker's testimony, as it had done
to that of Botsford. Baker may have testified to facts which if
true or if believed by the jury made it so clear that the title
passed from him to Dean as to justify the court in saying so. And
if he did so testify, we cannot say that the conclusion thus stated
by the court, leaving as it did the right to believe or disbelieve
the witness to the jury, was error.
It is true that this Court does not see anything in that part of
Baker's testimony embodied in the bill of exceptions which
justifies such an inference. But the bill of exceptions does not
purport to give all that he said, and according to a well known
rule, this Court, under such a condition of the record, is bound to
presume that there was that in Baker's testimony which justified
the instruction. What purports to be the entire deposition of Baker
is sent up by the clerk of the district court and is printed in the
record before us, and if properly before us, might sustain the
exception. But this deposition is not incorporated into the bill of
exceptions nor so referred to in it as to be made
Page 67 U. S. 581
a part of the record of the case. It is only a useless
encumbrance of the transcript and an expense to the litigating
parties. Clerks who certify transcripts to this Court should know
what does properly constitute the record they are to send up, as it
is a matter which has been often decided and which may be readily
learned with a little attention.
The judgment of the District court is therefore
affirmed.