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and that the amount of such losses was ad- The assured cannot recover from both parjusted and allowed by him and the plaintiff ties for the entire loss. The liability of the and the defendant's committee at that sum, railway company is, in legal effect, first and which is the same amount named in the re- principal, and that of the insurer secondary, lease. With these admissions of record, not in the order of time, but in order of ultithere can be no question but what the fire mate liability. Id.; Chicago, St. L. & N. 0. mentioned in the second amended complaint R. Co. v. Pullman Southern Car Co., 139 U. and the amended reply was the same fire S. 88, 11 Sup. Ct. 490. Thus, it has been mentioned in the answer and the release, held that “where an insurance company pays nor that the property mentioned in such the insured for a loss by fire occasioned by complaint and reply is the same named in the fault of a railway company, and the in. the answer and release, nor that the plain- , sured afterwards receives the amount from tiff received $775 and Antisdel $100 from the the railway company, in satisfaction of his railway company in settlement and discharge damages, he holds it in trust for the insurof their respective claims against that com- ers, and they may recover it from him by pany for destroying the property belonging suit in equity.” Insurance Co. v. Hutchinto them, respectively, by starting the fire at son, 21 N. J. Eq. 107. So, in the New York the time and place named. The question re- case cited, it was held that, “if the assured curs whether upon such admitted facts, and receives the damages from the wrongdoer be. notwithstanding such settlement and dis- fore payment by the insurer, the amount so charge of the railway company, the plaintiff received will be applied pro tanto in discan nevertheless maintain this action to re- charge of the policy." Connecticut Fire Ins. cover damages for the same loss against the Co. v. Erie Ry. Co., 73 N. Y. 399. True, the defendant. The law on the subject seems plaintiff's amended reply denies that the rail. to be pretty well settled. It has been held way company caused the fire mentioned in by this court that "an insurance company the complaint and alleged in the answer, but which has been compelled to pay the owner such denial does not conclude the defendant. for property destroyed by fire has a right of It is still admitted of record in this case that action against the person who wrongfully the railway company paid to the plaintiff caused the loss, without any assignment of $775 to settle his claim against that com. such right by the assured, and, under our pany for the property insured and burned by statutes, may sue in its own name." Swartb. a fire alleged by him to have been started out v. Railway Co., 49 Wis. 625, 6 N. W. 314; by that company. The release did not conWunderlich v. Railway Co., 93 Wis. 132, 66 fine itself to so much of the plaintiff's claim N. W. 1144; Hustisford Farmers' Mut. Ins. for damages as was not covered by the inCo. v. Chicago, M. & St. P. Ry. Co., 66 Wis. surance, as in the Pennsylvania case cited. 58, 28 N. W. 64; Connecticut Fire Ins. Co. Insurance Co. of North America v. Fidelity V. Erie Ry. Co., 73 N. Y. 399. Had the de- Title & Trust Co., 123 Pa. St. 523, 16 Atl. fendant in this action paid to the plaintiff the

791. The language of this release is sweep insurance money due him on the contract of ing, and releases and forever discharges the insurance, the plaintiff could not, properly, railway company from any and all claims by thereafter have sued the railway company

reason of the loss of the property. It exfor the loss of such property, without making pressly covers all claim which the defendthe insurance company a party plaintiff, or, ant might have on making payment of the in case it refused, a party defendant. Pratt loss. The defendant would have no right v. Radford, 52 Wis. 114, 8 N. W. 606; Wun- of action against the railway company in derlich v. Railway Co., supra; Home Mut. case it should make payment. Such right Ins. Co. v. Oregon Ry. & Nav. Co. (Or.) 26 of action has been taken away and destroy. Pac. 857; Phenix Ins. Co. v. Pennsylvania ed in advance by the plaintiff's release. It Co. (Ind. Sup.) 33 N. E. 970. So, this court is no answer for the plaintiff now to allege has recently held that “payment by an insur- that the fire was not caused by the railway er of the full amount of a loss caused by a company, and hence that the defendant fire negligently set is a complete defense to an would have no right of action against that action by the insured against the person lia- company upon paying the loss. It is enough ble for the negligence; the acceptance of to know that the plaintiff procured from that such payment being, in effect, an assign- company $775 on the claim that it did cause ment of the cause of action to the insurer." the fire, and is now seeking to deprive the Allen v. Railway Co., 94 Wis. 93, 68 N. W. defendant of the benefit of that payment by 873. It is also well settled that, where alleging that it did not cause the fire. The property is thus insured and destroyed by judgment of the circuit court is affirmed. mhe negligence of a railway company, the owner of the property cannot rightfully release or discharge the right of action which

BOUTIN V. CATLIN et al. the insurance company would have against (Supreme Court of Wisconsin. Jan. 10, 1899.) the railway on making payment of the loss

APPEAL - DISCRETION – JUDGMENT BY DEFAULTwithout releasing the insurance company.

VACATION_TERMS. Hart v. Railroad Corp., 13 Metc. (Vass.) 99; 1. On an appeal from an order made under Insurance Co. y. Weller (Iowa) 68 N. W. 443. Rev. St. 1898, $ 2832, setting aside a judgment

þy default, the only question to be determined | tax deeds, against, among other defendants, is whether the court abused its discretion.

divers clients of the firm of Catlin, Butler & 2. In an action to foreclose a tax title on land worth much more than the amount of the tax,

Lyons; that there was a general agreement the copy of the complaint served on defendant and understanding between them and the was not signed or verified. Twenty-three days plaintiff's attorney that it would not be necafter the time for answering, plaintiff obtained

essary for them to answer for such clients a judgment by default, and eight days later defendant moved to vacate it, tendering an answer

within the time limited by statute, but that, setting up a complete defense, and averring that where desired, further time could be taken, plaintiff's attorney had agreed to permit him to

and that judgment would not be taken by answer after the time fixed by statute. Held, that it was not an abuse of discretion to grant

default in any case where they desired to dethe motion.

fend; that in certain of such other cases the 3. Where a judgment by default was vacated affiant was one of the defendants; that, about at the same term at which it was rendered, on the time of the commencement of this action, condition that defendant submit to trial at that term, failure to require payment of costs as an

the affiant informed the plaintiff's attorney additional condition does not show that it was that the plaintiff was not the lawful owner not vacated on such terms as were just, as au- of such certificates, and that affiant would thorized by Rev. St. 1898, § 2832. 4. Imposition of terms is not necessarily a con

have a full and complete defense to any acdition precedent to the granting of a motion to tion brought by him, and would resist and vacate a judgment by default at the same term defend any action brought to foreclose such at which it was entered, since the trial court may vacate or modify judgments during the

certificates, or any deed or deeds obtained same term at its discretion.

thereon; that it was well understood beAppeal from circuit court, Douglas county;

tween him and the plaintiff's attorney that

the affiant would defend in this and all othA. J. Vinje, Judge. Action by Frank Boutin, Jr., against

er actions affecting any of his properties; Charles L. Catlin and others. From an order

that, prior to the expiration of the time for

answering in this action, the affiant prepared vacating a judgment by default against de

an answer herein for all of the defendants, fendants, plaintiff appeals. Affirmed.

with copies of the same to serve, and a copy A. B. Ross, for appellant. Catlin, Butler of which is thereunto annexed and made a & Lyons, for respondents.

part thereof; that about that time, and prior

to the expiration of the time for answering CASSODAY, C. J. The plaintiff, claiming herein, the plaintiff's attorney left Superior title to the land described under and by vir- for the Eastern states, and did not return tue of two tax deeds, both executed Octo- until about January 17, 1898; that during his ber 21, 1897, and recorded October 26, 1897, absence the affiant called at his office to -the one issued upon the sale of 1893, and make certain stipulations or arrangements in the other the sale of 1894,-commenced this regard to certain of the tax-foreclosure cases action by the service of the summons and mentioned, and was told by the person in complaint on the defendant Charles L. Cat- charge that the plaintiff's attorney was ablin, the owner of the land, and his wife, No- sent, and that there was no one who could vember 22, 1897, and upon the defendant act for him, and that all matters appertainbank, holding a mortgage thereon, December ing to such suits would have to await his re7, 1897, to bar the defendants as such own- turn, that nothing would be done in any of ers, under section 1197, Rev. St. 1898. On his cases during his absence; that, relying January 20, 1898, being an adjourned day of upon sucb statement and upon the general unthe November term of the court for 1897, derstanding mentioned that no judgments judgment was entered therein by default. would be taken by default, and upon the unThereupon, and on January 28, 1898, the de- derstanding that the affiant would defend in fendant obtained an order on the plaintiff to all of the cases where his property was afshow cause before the court at the then pres- fected, the affiant awaited the return of the ent term thereof, February 1, 1898, why such plaintiff's attorney to make service of the judgment should not be opened, vacated, and answer herein; that Tuesday, January 18, set aside, and the defendants allowed to file 1898, and immediately after his return, aftheir proposed answer and defend the action, fiant went to his office, but was informed based upon the records in the action and such that he had just returned, and was changing proposed answer and an affidavit of the de- his place of residence, and would not probafendant Charles L. Catlin. That from such bly be in his office that day; that affiant was affidavit and proposed answer it appears, in out of town on Wednesday; that on Thurseffect, that the copies of the complaint so day, January 20, 1898, judgment against the served upon the defendants, respectively, defendant by default was entered; that afwere not either of them signed by any at- fiant had no notice or information thereof torney, or verified, as appeared from an in- until after the entry thereof; that January spection of the copies thereto annexed and 20, 1898, was an adjourned day of the Nomade a part thereof; that, at about the time vember term; that the circuit judge, A. J. of the commencement of this action, the Vinje, was engaged at the time in the trial plaintiff's attorney had commenced for the of a cause in the southern part of the state, plaintiff and other clients a large number of and Judge Holms was presiding in his place similar actions for the foreclosure of divers for the purpose of hearing the city injunction cases; that the affiant understood that Judge such discretion. Rev. St. 1898, $ 2832; HanHolms would hear no other cases or busi- son v. Michelson, 19 Wis. 498; Kennedy v. ness, and that all other business of the court Waugh, 23 Wis. 468; Cleveland v. Hopkins, would await the return of Judge Vinje, and 55 Wis. 387, 13 N. W. 225; Whereatt v. 1so did not attend court on that day; that lis, 70 Wis. 215, 35 N. W. 314; Behl v. the total amount necessary to redeem said Schuette, 95 Wis. 443, 70 N. W. 559. Some real estate from the two pretended tax deeds of these cases go to the extent of holding that mentioned was $375.90, which had been ten- "such discretion must be a legal discretion, dered to the county clerk in payment there- and where an application, made in time, preof prior to the commencement of the action sents a case within the statute, and is ac and prior to the issue of the pretended tax companied by a verified answer alleging a deeds; that the value of the property was up- good defense on the merits, it is a manifest ward of $5,000; that such affidavit also con- abuse of discretion not to open the juig. tained an affidavit of merits. Such proposed ment upon reasonable terms." The answer answer was duly verified, and alleged, by abounds in denials, and alleges that the counway of defense, some of the facts mentioned ty never parted with the title to the tax cer and others. In opposition to such applica- tificates upon which such tax deeds were re tion, affidavits of four different persons were spectively issued, and that the defendant Catread, including one by the plaintiff's attor- lin had tendered the redemption money, and ney, and another by the person who served numerous other allegations. Of course, the the summons and complaint, and he admits validity of the tax deeds is not to be tried on that the copies of the complaint served by affidavits. The case presented, under the him were not signed, but that such failure rule stated, seems to have been sufficient to to sign was an inadvertence and unknown justify the court in setting aside the default, by him at the time. Upon the hearing of and allowing the defendants to file their adsuch motion, at an adjourned day of the No- swer and go to trial at the term of the court veinber term of the court for 1897, held Feb- then about to be commenced, as ordered. ruary 1, 1898, the court made an order re- True, the court did not require the defendciting that, it appearing that the judgment ants to pay costs; nevertheless, it was upon was entered on the default of the defendants, the terms mentioned, and which, under all and that such default was excusable, and the circumstances, the trial court manifest. that the judgment ought to be vacated and ly regarded as just. To require the defend. the defendants let in to answer and defend ants to go to trial at the term commencing the action, therefore, it was ordered that the February 1, 1898, instead of allowing the judgment and decree be, and the same was case to go over to the June term of the court, thereby, vacated and set aside, and the de- may have been of far more importance to fendants given leave to answer within five the plaintiff than the mere imposition of costs days from the date thereof; and that as a would have been. We are constrained to condition thereof the action be placed upon hold that the making of such order was not the calendar for the February, 1898, term of an abuse of discretion. Besides, the applicathe court, commencing on the same day, and tion to set aside the judgment was made stand for trial at such February term. From promptly on ascertaining the fact, and at the that order the plaintiff brings this appeal. same term of the court that it had been en

Had the copies of the complaint served tered; and that was one of the things to be been signed by an attorney, the time for an- considered in deciding the motion. Robbins swering the same would have expired De- v. Kountz, 44 Wis. 561; Landon V. Burke, cember 28, 1897. The judgment by default 33 Wis. 452. What has thus been said is on was entered more than 20 days after such the theory that the order setting aside the time had so expired. The proposed answer judgment, and allowing the defendants to was verified January 22, 1898. The applica- answer and defend, was justified only under tion to open the default was made eight days section 2832, Rev. St. 1898. But, as indicat. after the judgment was entered, and during ed, that order was made on an adjourned the same term of the court. It is conceded day of the same term of the court at which that the copies of the complaint served did the judgment was entered, and hence the not purport to be signed or verified. It is imposition of terms was not necessarily a difficult to believe that the defendants, as condition precedent to the granting of the owners of the property, would knowingly order. Of course, the discretion which a suffer it to be taken by a tax-title claimant trial court has the right to exercise orer verwithout making any resistance. Whether dicts and judgments entered at the same any statements were made in behalf of the term must be a legal discretion; neverthe plaintiff upon which the defendants had the less, such discretion is very much greater right to rely, and whether the facts and cir- when exercised at the same term than it cumstances were such as to justify the set- would be if exercised at a subsequent term. ting aside of the default, were questions R- v. R-20 Wis. 331; Stilson v. properly addressed to the discretion of the Rankin, 40 Wis. 531. Thus, it has been beld trial court. The only question for this court by this court that the trial court may, on its to determine is whether, in making the order own motion, modify or vacate an onier or setting aside the default, that court abused judgment during the same term at which it

is entered. Brown v. Brown, 53 Wis. 29, 9 120 acres of land known as the “Sun Prairie
N. W. 790; Hinman v. Paper Co., 53 Wis. Farm," and certain other real estate, and
169, 10 N. W. 160; 1 Freem. Judgm. § 90; 1 some personal property described in the com-
Black, Judgm. § 305. Certainly there was plaint, situated in Dane county, Wis., the
no abuse of discretion in setting aside the real estate being worth $5,600, incumbered
judgment in the case at bar. The order of for $2,950, and the personal property being
the circuit court is affirmed.

worth $1,093.55. Defendant Beebe owned a
tract of land in the state of Tennessee con-
sisting of about 323 acres, worth $646. Plain-
tiff was an uneducated man, weak in mind

and body, his condition being such that at
MENZ V. BEEBE et al.

intervals he had the appearance of being con(Supreme Court of Wisconsin. Dec. 16, 1898.)

fused and unable to comprehend the relation APPEAL-Review-TRIAL BY THE COURT-RESCIS

of things. He was a simple-minded man, of $ION OF CONTRACT-FRAUD-LIABILITY OF FRAUDULENT Vendee.

confiding disposition, and was weak in mind 1. On appeal from a judgment in an action

and body, as stated, during all the times mentried by the circuit court without a jury, on ex

tioned in the findings. October 5, 1894, wbile ceptions to the findings of fact the evidence will

plaintiff and Beebe were circumstanced, and be examined in respect to whether it sustains

the conditions existed, as stated, the latter, such findings, but error is presumed against, and unless clearly shown the decision of the trial for the purpose of inducing the former, who court will not be disturbed.

knew nothing of the facts, to trade the Dane 2. Under the foregoing rule all fair doubts are

county property for the Tennessee property to be resolved in favor of the decision rendered below; and the distance between clear prepon

and $200, knowingly and falsely represented derance of evidence on one side of a controversy that the latter was heavily timbered, valuable and preponderance on the other is so great that for farming, and worth from $15 to $20 per the decision below on a question of fact is not

acre. Upon the faith of such representations, easily or frequently disturbed. 3. When a person falsely represents the char

and not otherwise, plaintiff agreed to make acter or value of property for the purpose of in- the exchange as proposed by Beebe, and acducing another to part with the same by a sale cordingly, on that day, proper instruments or exchange for other property owned by him, and relying thereon such other makes the sale or

were duly executed; those transferring the exchange, he may rescind the transaction with- Dane county property to Beebe were duly dein a reasonable time after discovering the fraud, livered and properly recorded. Thereafter the by returning or offering to return what he re

parties together visited Tennessee, and there, ceives, and compel a restoration to his former situation.

on the 13th day of October, 1894, plaintiff 4. In case of a rescission of a fraudulent trans- still having no personal knowledge of Beebe's action as stated, the fraudulent vendee becomes property, but relying on his representations a trustee for his vendor and liable to account for

as to its value and character, and not otherall property received from him; and in case he is unable to restore all the property, then to ac

wise, accepted the deed thereof, and therecount for the value when obtained, of that which after caused the same to be properly recorded. he cannot restore, with interest; or if he has

The representations made by Beebe as stated sold it for more than its fair value, then to account for the amount so received, with interest,

were false, there being very little timber on the rule being that the fraudulent vendee has

the land, and none of value, and the land beno right to profit by his fraud.

ing unfit for cultivation and not worth to ex5. Though costs in an equity case are in the

ceed two dollars per acre. Plaintiff did not discretion of the court that means a legal discretion,-not mere arbitrary judicial will; and

comprehend how he had been deceived and unless a person has been called into court by an- defrauded by Beebe till shortly before the other or prejudiced by him in some way in the commencement of this action, and upon his action, there is nothing for the discretion of the

understanding the situation in that regard he court to act upon in mulcting such other in costs.

demanded a rescission of the whole transac(Syllabus by the Judge.)

tion, offering at the same time to fully restore Appeal from circuit court, Dane county;

Beebe to his former situation. Beebe paid R. G. Seibecker, udge.

the incumbrances on the Dane county land, Action by Charles Menz against Charles A.

mortgaged the farm for $3,000, and contracted Beebe and another. Judgment for plaintiff,

in writing to sell the same to defendant Bohn and defendant Beebe appeals. Affirmed in

for $6,000, $500 of which was paid down and part and reversed in part.

the balance in 15 years absolutely, the net reThis action was brought to rescind an ex- ceipts of the farm in the meantime, to be apchange of real estate made between plaintiff plied annually on the purchase money, and and defendant Beebe, on the ground of fraud, the deferred payments to bear interest at the and for appropriate relief restoring plaintiff rate of 6 per cent. per annum payable annuto his former situation. Defendant Bohn was ally. Bohn acted in good faith, without notice made defendant as a purchaser from Beebe, of any wrong to plaintiff in his transaction with notice of the fraud complained of. He with Beebe. Beebe received on the land conanswered denying bad faith on his part and tract before this action was commenced, in ad. claiming to be a bona fide purchaser. Beebe dition to the down payment of $500, two in. answered, and the issues of fact raised by the stallments of interest of $330 each, and after pleadings were decided by the court substan- the action was commenced, upon a third intially as follows: Plaintiff was the owner of stallment of interest falling due, Bohn depos

77 N.W. -58


ited it in the Deerfield Bank for the use of N. W. 98; Magee v. Logging Co., 95 Wis. 377. whomsoever the court in the action should de 70 N. E. 1135. It seems a work of supererocide was entitled thereto.

gation to call attention to a rule that has so On the facts above stated the trial court long been given the significance that attends decided that plaintiff was entitled to a rescis- its reiteration in opinions filed at nearly every sion of the land trade, to have all the instru- sitting of the court for many years. We rements made to effect such trade adjudged peat what was said quite recently,-such rule void, saving only the rights of Bohn and the does not appear to be appreciated by many mortgagee, the judgment to be so framed as even who are learned and worthily eminent to devest and revest the titles accordingly, in their profession. That great earnestness to judgment against Beebe for $1,093.55 worth serve clients, and long-continued mental effort of personal property received by him of plain- to see a proposition in a particular way tiff and $1,160 received on the Bohn contract, should bias the mind and render difficult the less $200 received by plaintiff on the land duty of facing the record as it is, and seeing trade, making ip all $2,053.55, and in addition things from the standpoint of impartiality necThereto interest on the sums mentioned from essary to determine with some degree of certhe time Beebe received the same, and to tainty the probable result of subjecting the judgment awarding plaintiff the special depos- record to the test of impartial judicial examiit of $330 and costs against Beebe. The court tion under the rules governing it in an apfurther decided that Bobn should

pellate court, is most natural. To do that it costs against Beebe. Exceptions were filed to must not be lost sight of that there is a wide the court's finding and conclusion. Judg- range between clear preponderance of eviment was rendered in all respects according dence on one side of a controversy and preto the foregoing, from which Beebe appealed. ponderance on the other; that it is so wide

that when all fair doubts are resolved in G. S. Martin and Bushnell & Hall, for ap

favor of the facts as determined by the trial pellant. Geo. W. Bird, for respondents.

court, necessarily the cases are few where

this court can properly disturb such determiMARSHALL, J. (after stating the facts). nation. There is no question of law presented for We do not de it ad sable to quote here consideration in this case. No claim is made

the evidence from the record which influences but that the findings of fact support the con- us to the conclusion we have reached. It is clusions of law, and, in the main, that the very voluminous. We could not quote from conclusions of law support the judgment, the it at all with any satisfaction without greatonly contention as regards the last proposi- ly burdening the opinion with matter that tion being that some errors were made in the would be of no benefit in future cases. To accounting between appellant and plaintiff, our minds the evidence is ample to sustain and that costs should not have been awarded the decision of the learned circuit court, that to Bohn against appellant. From this state- plaintiff was a weak, simple-minded man; ment of the situation it will be seen that the that Beebe was right the reverse; that he se. burden of appellant's argument is to show cured the confidence of plaintiff and falsely that the trial court should have found differ- represented the Tennessee land both as to ently on the facts, and to that end the learned character and value in order to secure therecounsel for appellant have, at great labor, pre- for, from plaintiff, some over $3,000 in value pared and presented here a printed book of of property, for property worth between $800 324 pages, which has been examined with and $900; that the scheme, without fault on all the care that should be bestowed upon the plaintiff's part, succeeded, and that plaintiff case in order to properly review so much ma- commenced this action to avoid the transacterial and determine where the truth lies, tion within a very short time after he comwithout being able to discover with clearness prehended the fraud that had been perpewherein the learned trial court erred as to trated upon him. The case is complete on the facts. It should not be forgotten that the facts found, and the evidence to sustain this court does not try causes de novo, in the such facts appears to be very strong and constrict sense of the term, even where they were vincing. tried below without a jury; that the evi- It is contended that the relief granted is dence is not examined and weighed with excessive, but the reason assigned for such the degree of exactness required in trying a contention shows, as the fact is, that the decase originally. While it is true that on an cree only required the appellant to restore appeal in an equity case, or one tried by the what he obtained from plaintiff so far as it court without a jury, the evidence is to be was in his power to do so, and to respond in examined and weighed, where errors are prop- money for such portion of the property oberly assigned on proper exceptions, at the tained from plaintiff as he was unable to resame time er or is presumed against and the store. The title to the Sun Prairie farm was findings cannot be disturbed unless clearly revested in plaintiff subject to the contract against the preponderance of the evidence. with Bohn, and appellant was required to pay Stanbilber v. Graves, 97 Wis. 515, 73 N. W. to plaintiff the sums he had received on such 48; Clausen v. Hale, 96 Wis. 100, 71 N. W. contract with interest. He was also required 122; Momsen v. Plankinton, 96 Wis. 166, 71 to restore the personal property by paying to

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