#### Van Etta vs. Evenson, impleaded, etc.

*Note and Mortgage: JSfcme of payee and mortgagee inserted afterr execution and delivery to agent.*

Where a note and mortgage otherwise fully executed, hut with a "blank in each for the name of the payee and mortgagee, were delivered to an agent who was to procure (from whomsoever he could) a loan of money thereon for the maker, this shows an intention that the agent should fill the blanks, and when so filled the instruments were valid without a new execution and delivery.

*34APPEAL from tbe Circuit Court for *Dane*County.

Action to foreclose a mortgage purporting to bave been executed by *ThroncV Evenson*and Anna Maria, bis wife, to secare a note made at tbe same time by one Hegg and said *Thrond Evenson.*Tbe note and mortgage were given to secure money loaned by tbe plaintiff to said Hegg; and said Evenson, wbo was tbe owner in fee of tbe mortgaged premises, answered denying tbat be ever executed or delivered tbe mortgage, or ever received any consideration for it; and alleging tbat said mortgage and note were, as to bim, false, fraudulent and void; and demandmg judgment tbat tbey were void and be delivered up to be cancelled, and tbat tbe mortgage be satisfied of record. Eeply in denial.

It appeared from tbe evidence tbat tbe names of *Thrond Even-son*and Anna Maria Evenson were signed to tbe mortgage and note by Hegg, wbo was tbe son of said Anna Maria and stepson of said *Thrond.*There was conflicting evidence as to whether such signatures were made with their knowledge and consent. It also appeared tbat tbe name of tbe payee and mortgagee was not inserted in tbe several instruments until after their execution; tbat tbey were made for tbe purpose of enabling Hegg .to obtain a loan of money through one Brown, residing in the city of Madison; tbat at tbe tbne of their execution Hegg did not know from whom tbe money was to be obtained by Brown, and therefore did not know *to whom*tbe note and mortgage were to run; and tbat after be brought tbe securities to Brown for tbe purpose of delivering them and receiving tbe money, be inserted tbe name of tbe plaintiff, upon ascertainingfrom Brown tbat plaintiff was tbe person from whom tbe money was obtained.

The court found tbat tbe defendants made tbe note and mortgage as alleged in tbe complaint; tbat all tbe material allegations in tbe complaint were true; and tbat tbe matters set up in tbe answer of *Thrond*Evenson, by way of defense and coun*35terclaim, were not true. Judgment of foreclosure against the defendants; from wbicb *Throncl Evenson*appealed.

*J. G. Ford,*for appellant,

contended upon tbe evidence that the appellant never authorized Hegg to sign his name to *this*mortgage or to deliver the same. He further insisted that the note was probably void, and the mortgage certainly so, because the name of the payee and mortgagee was inserted by Hegg without any direct authority from the appellant or his wife, and without their knowledge, and the instruments were delivered without the express direction or knowledge of either of them. *Ayres v.*Harness, 1 Ohio, 173 ; opinion of MARSHALL, 0. J., in 2 Brock., 64 ; 2 Nott & McO., 125; *Byers v.*McOlaunham, 6 Gill & J., 250; *Gilbert v.*Anthony, 1 Yerg., 69.; *Graham v.*Holt, 3 Iredell, 300; *Woodworth v. Bank of*Ahnerica, 19 Johns., 391; *Manning v.*Norwood, 1 Ala., 429; Shepherd’s Touchstone, 54.

*Gregory & Pinney*for respondent:

Where one affixes his signature to a blank form, or to an instrument in which blanks remain to be'filled, he *prima facie*authorizes the instrument to be filled or completed as such instruments are usually filled and completed. *Bank v.*Neal, 22 How., 96 ; *Bank v.*Kimball, 10 Cush., 373; *Spider v.*James, Am. Law Reg. for 1870, 605, and cases there cited. And this principle has been extended to instruments under seal. *Keane v. Smallbone,*84 Eng. Com. Law, 179; *Vlietv. Gamp,*13 Wis., 205. The authority is held to be deducible from the nature and objects of the instrument and its possession by a third party; and the intention of the parties and the authority to fill the blanks are as clearly deducible in the case of an instrument under seal as of one not under seal. This case is identical with 'that of *Texira v.*Evans, decided by Lord MANSFIELD, cited 1 Anstr., 228. See also the observations of Justice WiLSON, as to navy bills under seal. 1 Anstr., 229. The doctrine of *Tex-ira v. Evans*has been approved and applied in cases like the present in many American cases. *Wiley v. Moor,*17 S. & R, 438; *Smith v. Grooker,*5 Mass., 539; *Duncan v. Hodges,*4 Me-*36Cord, 239; *Bichm. Man. Co. v.*Davis, 7 Blackf., 412; *Woolley v. Constant,*4 Johns., 54; *Knapp v.*Maltby, 13 Wend., 587; *Ex parte*Declcer, 6 Cow., 59 ; *Ex parte Kerwin,*8 id., 118; *Com. Bh. v.*Kortwrighi, 22 Wend., 364; *Boardman v. Gore,*1 Stewart (Ala.), 517; *Ylietv.*Gamp, 13 Wis., 198; 1 Greenl. Ev., § 568 a, note 7.

Dixon, C. J.

We decide the question of fact in this case, which was fully discussed by counsel, and which we too have fully examined, as it was decided by the court below, in favor of the plaintiff. Our reasons for this- conclusion need not be stated at length, as upon such a question no one case can be a precedent for another. It is only to vindicate the correctness of its own conclusion in the particular case that the court ever enters into a particular or extended examination of the testimony. The correctness of our conclusion is sufficiently vindicated by reference to the testimony of Ool. Yilas, which is very clear and strong, and, added to that of the other witnesses on the same side, creates a decided preponderance in favor of the plaintiff. It seems quite impossible that Ool. Yilas, whose intelligence and ■ truthfulness cannot be questioned, and who was wholly disinterested, could have been mistaken with regard to the facts to which he testified. We do not think that he was, and his testimony, or rather the admission of the defendant made to him, fully corroborates the testimony of the principal witness, Hegg, respecting the execution and delivery of the note and mortgage; and, however doubtful Hegg’s testimony might otherwise be, it cannot be rejected when thus supported.

The execution and delivery of the note and mortgage seem to have been a most unfortunate affair for the defendant *Even-son,*and he has our sympathy; but we cannot, upon the testimony given, sustain his defense that he never executed them or ■assented to their execution and delivery.

The note and mortgage, at the time of their execution and «delivery to Hegg, who was to negotiate and procure a loan of *37money upon them, were in blank as to the payee of tke one and the mortgagee of tke other; and those blanks were subsequently filled by Hegg, who inserted the name of the plaintiff, from whom the loan was obtained. The only question of law in the case is as to the authority of Hegg thus to fill the blanks. It does not appear that the defendant directly or expressly authorized Hegg to insert the name of the plaintiff or of any particular person ; and his authority to do so, if it existed, is to be implied from the facts and circumstances of the execution and delivery of the papers. It is insisted that no such authority can be implied, or expressly given by parol, to write or insert anything in sealed instrument after a delivery, and that a re-delivery is necessary to give it any validity. Authorities to this effect, and we believe all that are to be found, are cited. On the other hand, cases holding the opposite doctrine are cited. The latter are considerably the most numerous, and among them is a case in this court—Vliet v. *Camp,*13 Wis., 198. This last really controls the present case, unless it is to be overruled; and we certainly see no occasion for that. The grounds upon which the opposite decisions proceed are well stated by Chief Justice MARSHALL in *The United States v. Nelson and*Myers, 2 Brockenbrough, 64. They axe grounds of the purest and most unalloyed technicality, originating in a state of things and condition of the law which have long since passed away. This truth was clearly perceived and fully appreciated by the great chief justice, whose opinion, almost from beginning to end, was a struggle against the conclusion at which he arrived: He was overborne by what was at that time considered the weight of authority. In the course of the opinion he says : “ If this question depended on those moral rules of action which in the ordinary course of things are applied by courts to human transactions, there would not be much difficulty in saying that this paper ought to have the effect which the parties, at 'the time of its execution, intended it should have.” And he concludes it with the following remarkable statement: “I say with much doubt, and *38■with, a strong belief that tbis judgment will be reversed, tbat tbe law on tbis verdict is, in my opinion, witb tbe defendants.” At tbe present day we labor under no sucb embarrassment; for tbe great weight of authority undoubtedly is, tbat effect will be given to tbe plain intention of tbe parties, notwithstanding tbe instrument may be under seal, and notwithstanding tbe technical rules of tbe early common law witb respect to tbe execution and delivery of sucb instruments. If it be manifest tbat it was *the*intention of the party by whom the instrument was executed, at the time of its execution, tbattbe name of tbe payee or mortgagee should, be afterwards supplied and written in by tbe person to whom tbe instrument was delivered, then tbe rule of law is, that tbe name may be so supplied and written in, and complete effect given to tbe instrument according to sucb intention.

Tbe intention of tbe defendant in tbis case is clearly manifested by tbe facts and circumstances attending tbe execution and delivery of tbe note and mortgage to Hegg, and tbe purposes for which they were executed and delivered; and tbe subsequent insertion of tbe name of tbe payee and mortgagee by Hegg was a valid execution of an implied authority tbattbe same .should be so inserted by him.

*By the Court.*—Judgment affirmed.