#### Kimball vs. Johnson and others.

The acknowledgment of a mortgage made to a married woman, is not invalid because taken before the husband of the mortgagee, who was a justice of the peace in this state.

The judgment in this case (which was an action to foreclose a mortgage) was reversed on the ground that the finding of facts by the circuit court was not supported by the weight of evidence.

APPEAL from tbe Circuit Court for *Kenosha*County.

This was an action to foreclose a mortgage given by tbe defendant *Isaiah Johnson*and wife to Betsy D. Goff, dated March 10th, 1856, to secure tbe note of said Isaiah, of that date, for $600, payable to her order one year after date, and alleged in the complaint to have been indorsed to tbe plaintiff before it fell due. Tbe acknowledgment of tbe mortgage purported to have been made before William Goff, who was tbe,husband of said Betsy, and was a justice of tbe peace. Tbe mortgage was recorded April 15, 1856. Tbe mortgagors and *Campbell,*a subsequent mortgagee, resisted tbe foreclosure, on tbe grounds, among others, that tbe mortgage in suit was never acknowledged as required by law, and that tbe note referred to in tbe mortgage was obtained without any consideration, and was assigned to tbe plaintiff (if assigned at all) for tbe purpose of cutting off their defense.

On tbe trial, it appeared that at tbe date of tbe mortgage, and for some time previous, William Goff and *Isaiah Johnson*bad been members of a partnership, engaged in tbe lumber business, tbe former spending bis time principally at Keno-*675sha, and the latter at Manitowoc. Mr. Goff testified, that in January, 1856, he told *Johnson*there was an indebtedness the firm which must be met, and that *Johnson*said he was willing to get money to meet it if he knew where it could be had, and that if the witness’s wife had money, he was willing to give a mortgage to secure the loan of $600 for that purpose ; that the consideration of the note above mentioned was $600, of money belonging to his wife, which, at *Johnson’s*request, he had got from her and had used in paying certain debts of the firm; that about the loth of March, 1856, he inclosed the note and mortgage in a letter to *Johnson,*at Manitowoc, requesting him to execute and return them; that he thought *Johnson*did not then sign either of them, but that he came to Kenosha, and on the 3d of April, 1856, handed witness the note and executed the mortgage; that at the time of executing the mortgage, *Johnson*knew that the money had been used in paying the firm debts, and said it was all right. The witness produced the notes of the firm, which he referred to as having been taken up, in part, with the $600 of his wife’s money, being a note for $950, due the Kenosha County Bank, one for $54, due to Simmons & Co., and one for $367.25, to parties in Chicago.— Being called on to state when he received the $600 from his wife, he stated that there was an ante-nuptial contract between himself and his wife (which was produced, bearing date April 5, 1845), by which it was agreed that her estate, and any which she might acquire by descent or otherwise should be secured to her separate use, and by which the property she then owned was conveyed to a trustee for her sole benefit; that her estate at that time consisted of $1200 or $1500 in notes, and some $200 or $300 or more in money, and real estate prospectively; that when they came to Wisconsin in 1848, she brought $600 or $800 in money with her, and had since received $950 from the sale of real estate inherited from her mother; that he had received money from her at various times and had invested money which she had inherited, and acted as her agent in loaning the same ; that he had never had any settlement with the trustee of his wife, but had informed him how the money was used ; that *676^anuai7> 1856, Re collected of Ris wife’s money $600, wRicR Re deposited in tRe KenosRa County Bank, at tRe same time witR otRer funds amounting in all to $1031.90; tRat Re deposited tRe money to Ris own credit, but made a minute at tRe time, tRat $600 was Ris wife’s money, and so stated to the cashier or teller; that Re took up the note of $950, Reid by the KenosRa County Bank, by Ris check on that bank, dated January 29th, 1856, and paid the debt due in Chicago about the time he sent the note and mortgage to *Johnson*to be executed; that the $600 was credited to *Johnson*on the partnership books, which Rad been for some time in the hands of Johnson, and that Re (the witness) Rad paid for the firm since its commencement, $3119.84, (in which were included the notes before mentioned for $950, and $54, and for machinery at Chicago $500), and what he Rad received “ out of company papers of said sums, was $600 and $432.” Being asked if Re did not state in the letter to Johnson, enclosing the note and mortgage, that Ris wife Rad $600 in the KenosRa County Bank which *Johnson*could Rave on the return of the papers, executed, and if Re did not state to one Reuben Palmer, after writing that letter, that Ris wife Rad $600 in the bank which was ready for *Johnson*as soon as the papers sent to Rim were returned, Re answered that Re Rad no reccollection of making such statement in that letter, or in any conversation with Palmer.— TRe defendant *Johnson*testified that between the 14th and 20th *of*March, 1856, Re received a letter from Mr. Goff, enclosing the note in suit, and stating that Ris (Goff’s) wife Rad $600 in the KenosRa County Bank, which Re (Johnson,) could Rave if Re would sign and return the note; that Re put the letter into a chest which was unlocked, and Rad not, after diligent search, been able to find it; that upon that statement in the letter, Re signed the note and returned it; that after Re went back to Kenosha, on the 3d of April, Goff told Rim the money was Ris wife’s, and was in the KenosRa County Bank ; that Re called on the teller of the bank for it in the latter part of April, and was informed that there was no money there for Rim ; that again in May Re saw the plaintiff in this suit (who was cashier of the *677bank), and was told there was no money there for him, and in the forepart of July he again inquired of the plaintiff there was any money deposited in the bank for him by Mrs. Groff, or if she or Groff had any there in March or April, and was answered in the negative ; that he then told the plaintiff that Goff had written to him that his wife had $600 in that bank, which he could have if he would execute a note and mortgage, but that he had not had one cent of it; that he talked with the plaintiff about it several times, before he bought the mortgage, and told him the date of the mortgage, and what property it was upon; that he sold out all his interest in the partnership in August, 1856, and in November demanded the note and mortgage from Goff and his wife; that Goff promised, from time to time, to give it up ; and that Goff had told him that the $950 note was taken up by giving a new note to the bank, in the firm name. The witness produced the partnership books, in which appeared an entry of the $600 credited to Johnson, for money received of Mrs. Goff in 1856. An erasure appeared to have been made in the book, and the witness stated “that he made the erasure because he thought it ought not to have been there. It was for money he had paid, not for the company, as it was entered, but in fact was paid out on a private account for land.” He stated also that he had paid into the capital stock of the firm between $2,000 and $3,000, all of which, he said, was entered in the partnership book, and a part of it consisted of cooking utensils, &c. On cross-examination, he testified that part of the entries of what he had paid in (being for household furniture, cooking utensils, &c., to the amount of several hundred dollars) were made by him after he took possession of the partnership books, and after he and Goff had tried to settle, and that he did not remember of having read the letter Goff sent him, more than once.

S. Johnson, a son of Isaiah, testified that in the spring of 1856, he took from the post office at Manitowoc, a letter from Goff to his father, and read it; that it contained a note for $600, but no mortgage, and it read as follows: “ *Mr. Isaiah*Johnson, Sir: I have got back to Kenosha. My wife *678^aS iQ -^-enos^ia County Bank; if you will sign note and return it, you can have the money. * * * You sign this note and return it and you can have the mon-|*000, that my wife has in the bank. I have seen Mrs. Johnson, and told her all about itthat his father read the letter and signed the note; and that the note in suit (which the witness had just read) was the one contained in the letter. On cross-examination he stated that he had never read the letter but once, and that his attention was not called to its contents until the next fall afterwards, and on being required to repeat the words of the note he had just read he declined attempting it. The defendant also read the deposition of Reuben Palmer, (his brother-in-law), which stated that in March, 1856, the deponent had a conversation with Goff, in which the latter said that he had sent some papers to *Mr.*Johnson, and that his wife had $600 in the bank which was ready for him as soon as the papers were returned ; and read also the deposition of R. B. Palmer, (a son of the last witness), who testified that he was present at the conversation referred to by his father ; that his father told Mr. Goff that *Mr. Johnson*requested him to see whether Goff had found out where they could get some money; that Goff replied that he had made out the papers and sent them to Johnson, and that his wife had the money in the bank ; that his father told Goff there was another person of whom he or they could get it, and Goff answered that they could have it of his wife if they wanted it, but if they had rather get it anywhere else, it would make no difference; that as soon as *Johnson*signed the papers and sent them back, the money was ready for him in the bank. Lane, a witness for the defendant, testified that he was present in the spring of 1857, when Goff and *Johnson*were trying to settle their partnership affairs, and that he understood Goff to say at that time, that he paid the $950 note by his check, and gave the company’s note to the Kenosha County Bank to pay the check with. Mr. Goff recalled, stated that he never knew that *Johnson*wanted money for his private business in the spring of 1856 ; that he had no recollection of *Johnson's*speaking to him again about the note and mortgage, until the latter *679part of the summer or in the fall, nor until after he *{John son)*hacl sold out, and left the company’s debts for; and that he had no recollection of ever having promised *Johnson*to give up to him the note and mortgage. The plaintiff testified that he was cashier of the Kenosha County Bank; that the note of $950 was paid by Mr. Goff’s check on that bank, Jan. 29, 1856, and the deposit out of which it was paid, was not in virtue, of any note made by Johnson, Goff & Co., audit was a month or more after it was paid before any new note was discounted for that firm, by the bank. He testified also, that the other notes for $54, and $364.14 referred to by Goff in his examination, were paid by Mr. Goff, the first, January 29th, and the last, March 12th, 1856. He also stated that Johnson, Goff & Co. kept no account at the bank ; and produced a copy of the bank account of Goff for the month of January, 1856, which showed that on the 28th of that month, Goff had less than $10.00 to his credit, and on the 29th made a deposit, which was entered as follows: *“($600*Mrs. G’s), $1031.90,” andón the same day checked for $1004.00. He also stated that Johnson, Goff & Co. were still indebted to the Kenosha County Bank about $2,000, and that he held the note and mortgage in suit as a collateral security for that debt, having paid Mrs. Goff nothing for it, and that he had no recollection of *Johnson’s*having ever said anything about them until after they were assigned to him.

The circuit court found that the note and mortgage were given without consideration, and that the plaintiff had no cause of action. Judgment *for the*defendants.

December 30

*By the Court,*

Dixok, O. J.

The questions involved in this case are principally of fact, and upon them we are unable to concur with the circuit judge. The testimony of the witness William Goff, if he is to be believed, fully sustains the plaintiff’s right to recover. We believe him. He testifies with fairness and candor, and with no attempt at prevarication or concealment. His history of the transaction is rational and consistent, and bears throughout inherent evidence of its truthfulness. It is corroborated in the most *680material points by other proof, and particularly by the documentary evidence, which is more certain and reliable in its character than the oral evidence of the witnesses. Even the books of the partnership, when seen through the mutilations and changes of the defendant Johnson, show that the monej was borrowed by him and used for the benefit of the firm of Johnson & Goff. The separate property of Mrs. Goff, the ante-nuptial contract and appointment of the trustee, and Goff’s agency in the management of her property, are established beyond any reasonable doubt. The deposit book of Mr. Goff in the hand writing of the teller of the bank, and the entries in the books of the bank show, in a manner which precludes all debate, that there was $600 deposited in the bank, and set apart as the money of Mrs. Goff. It is impossible to suppose that these books were prepared at the time, with a view to any anticipated effect which they might have upon this litigation. The same books show with equal clearness and certainty, that the $600 went towards the payment of the $950 bank note, and the $54 note to Simmons & Son. The pretense that Goff paid the cheek with the note of the company, or that he obtained the money by giving such a note, is entirely unsupported by the evidence.— When we consider the nature and amount of their business, and that *Johnson*was familiar with it and in possession of the books, it is incredible that Goff should have realized such a sum upon the note of the firm, and yet that *Johnson*should be unable to search out and establish the fact. No *bona fide*effort was made to prove it, and we do not believe that the claim was put forth from an honest conviction that such was the case. It is true that some questions are put to Goff upon that hypothesis, but we cannot regard them as having been asked in good faith. If they were, his answers completely negative the assumption, and explain the subsequent transactions with the bank as fully as could be expected under the circumstances. In this, as in most other respects, he is supported by the plaintiff Kimball, who testifies positively that no money was borrowed from the bank at that time, nor for a considerable time afterwards. If the money was borrowed elsewhere, it could not have been a *681secret which was past finding out. The notes taken up were produced with the marks of cancellation upon and we think it was conclusively shown that $600 of Mrs. Goff’s money was appropriated in the manner stated by Mr. Goff.

The next question is, whether it was thus appropriated with the knowledge and consent of the defendant Johnson, and as so much money contributed by him towards discharging the indebtedness of the firm, with the understanding that he was to execute the note and mortgage to secure its repayment to Mrs. Goff. We have no doubt that it was. If there were no other evidence before us but the note and the fact that the $600 was so applied, the testimony of the defendant *Johnson*alone would convince us that they were executed and delivered to secure the payment of it. He claims that he needed the money in his own private business, and that he executed and delivered the note and mortgage with the expectation that it would be advanced to him for that purpose, which was never done. His relation of the affair is altogether too strange and unaccountable for us to credit. The note and mortgage are dated March 10, 1856. It would appear from this testimony that the negotiation was opened by Goff’s sending the note to him at Manitowoc sometime about the 15th of that month to be executed and returned, saying that Mrs. Goff had the money in the bank, which he could have if he would sign it. Without further examination or inquiry, he signed the note and returned it in a letter. After his return to Kenosha, and on the 3d of April, the mortgage was presented, and he and his wife signed it. At that time also he says Goff told him the money was in the bank. Now the most remarkable feature of his testimony is, if, as he says, he borrowed the money for his individual purposes, that he should not have called for and received it before executing and delivering the note and mortgage. It may not be surprising that he should have signed and returned the note, but it is certainly very extraordinary that he should have executed and delivered the mortgage without demanding the money. Yet if he is to be believed, he did not even ask for it, but contented him-*682Se^^°^,s statement that it was in tlie bank. Nearly a month bad already elapsed since tbe date of tbe note, and sf¿ll he says be made no inquiries for tbe money until about a month after tbe acknowledgment and delivery of tbe mortgage, and then instead of going to Mrs. Groff or her husband, be called first in tbe latter part of April, upon tbe teller of tbe bank, and subsequently, in May, upon Mr. Kimball, tbe cashier; and it would appear from tbe testimony of the witness Palmer, that be called again upon Mr. *Kimball*in tbe fore part of June. He was distinctly informed on each of these occasions, that Mrs. Groff had deposited no money there for him, and yet be did not notify her or make any complaint until the November following, when be demanded a return of the note and mortgage. It appears that at that time there bad been a quarrel between him and Groff, and tbe copartnership bad been dissolved. A man who was under tbe necessity of borrowing money at a high rate of interest, and who bad delivered bis securities with tbe expectation of receiving it, would not have conducted himself in this way. He would have resisted tbe outrage by prompt and active measures. A statement so inconsistent and irrational cannot be believed. Tbe defendant’s behavior, according to bis own account of it, is subject to no reasonable explanation except upon tbe supposition that G-off speaks tbe truth. Hence be strengthens rather than weakens Groff’s testimony. Again, if the money had been intended for bis individual use, be could have explained tbe purpose for which it was required. He is entirely silent upon that subject.

Tbe evidence of tbe witnesses Reuben Palmer, Reuben B. Palmer, Shepard Johnson and Lane, doek not affect tbe case. Its leading features are too strongly marked by facts and circumstances about which there could be no dispute, to be overcome and shaken by such testimony. Of such admissions it has been well remarked, that they are “ a species of evidence easy to manufacture, difficult to rebut, often issuing through interested channels, and in tbe most favorable aspect, reflected from tbe memory or inferences of tbe witnesses.” With tbe exception of Lane, who speaks with great *683doubt and caution, tbe admissions testified to cannot be said to come through disinterested channels. The witnesses are the relatives of the defendant Johnson, and the testimony of his son Shepard Johnson is such on its face as would stagger the belief of any intelligent unprejudiced mind. His statement of the contents of the letter seems, under the circumstances, quite beyond reason and truth.

The only question of law presented is as to the validity of the acknowledgment of the mortgage. It was acknowleged before Mr, G-off, the husband of the mortgagee. We do not think he was on that account disqualified from taking it.

Upon the whole, therefore, we are of opinion that the judgment of the circuit court must be reversed, and the cause remanded with direction that judgment be entered for the plaintiff according to the demand of his complaint.

Ordered accordingly.