#### FREDERICK DIENER, Complainant, Appellee, *vs.*CHARLES SCHLEY, Defendant, Appellant, impleaded with FREDERICK DIENER, JR., and CALEB WALL.

APPEAL IN EQUITY PROM WALWORTH CIRCUIT COURT.

Parol evidence of the contents of a letter written by a party in this country to a person in Germany, who had always lived there, cannot be received in evidence without proof of its loss.

A witness was allowed to testify to the contents’of a letter which he swore he had seen in Germany, and which had been written by the defendant to his mother residing in Germany. Held, that the evidence was improperly admitted. The proper foundation for the introduction of secondary evidence should be laid.

The intention of the grantor in a deed is not, as a general thing, immaterial to the inquiry as to which of two persons of the same name as that of the grantee named in the deed, should take the title thereby conveyed.

In case where the deed is so drawn as to be sufficient to pass the title to either the father or the son, both being of the same name, the title passed according to the intention of the parties.

If in such case, the grantor is entirely indifferent, but subject to the control of the person with whom he negotiates, and who pays the purchase money, the will of the latter ought to control, and the title to pass according to his intention.

An interpreter is not *necessa/rüy*an agent of the parties, so that what he says may be given in evidence, if the party sought to be charged by his declarations had no knowledge of the language in which they were made, unless accompanied by proof that the interpreter correctly interpreted the language of the party.

A party *may*make an interpreter his agent, but the mere fact of his contracting with another party whose language he does not understand, through an interpreter, does not constitute the latter an agent so as to bind him by a false translation.

The bill was filed originally against Frederick-Diener, jr.; sole defendant, to procure tbe release from bim of certain claims of title set up by tbe latter, to certain lands in tbe bill described. Tbe bill is concise, and cannot well be abbreviated, and is as follows :

“ Your orator, Frederick Diener, whose place of abode is in tbe town of Spring Prairie, in tbe county of Walworth, com*484plaining, shows, that on the 13th day of October, A. D. 1851, he purchased of one John Martin, and Philomela, his wife, in con' sideration of $3,000, all those certain pieces or parcels of land situated in the county of Walworth aforesaid, and described as follows, to wit: The southwest quarter of section No. twenty-four (24), in township No. three (3), north of range No. eighteen (18) east, containing 160 acres of land, be the same more or less; also, that part of the northwest quarter of said section No, twenty-four (24), bounded as follows: commencing at the quarter-section post, between sections No. twenty-three and No. twenty-four (23 and 24), run thence north sixteen chains and twenty-four links (16.24), thence east across the northwest quarter of said section No. twenty-four (24), then south sixteen (16) chains and twenty-four (24) links, to the centre of said section No. twenty-four (24), and thence west to the place of beginning, containing sixty-four 96-100 acres of land, more or less, reserving in common the burying ground then on saidpremises. The north and south road, on the eighty rod line, being for the use of your orator and the said grantors, in common.

And your orator further states, that the whole consideration for said premises was paid by your orator, And your orator further states, that at the time of purchasing said lands above described, Carl Diener, a son of your orator, of the age of sixteen years, resided in Germany, where he was serving an apprenticeship to the trade and business of a miller, which apprenticeship was to terminate in two years horn that time. And your orator being anxious to make some provision for his said son, Carl Diener, in view of his tender age, and his residing at so great a distance from your orator, in case of the death of your orator, took the deed of the above described premises horn the said John and Philomela Martin, running to and in the name of your orator and the said Carl Diener, jointly, as grantees therein, which said deed was duly executed and acknowledged by the said John and' Philomela Martin, on the 13th day of October, 1851, and was duly attested, and was, on the same day at 12 o’clock, M., recorded in the register’s office of said county of Walworth, in volume 13 of deeds, on pages 479 and 480, as by *485said deed, or tbe record thereof, ready to be produced as this court shall direct, will more fully appear.

And your orator further states, that he now has the possession and legal title of an undivided half of all and singular the above described premises. And your orator further states, that Frederick Diener, jr., the defendant in this suit, who is a son of your orator, sets up a claim to your orator’s said undivided half of said premises, and falsely and fraudulently pretends and claims that he is the person named in said deed as one of the grantees *of*said lands and premises, and not your orator, and that he, and not your orator, is the legal owner of the said undivided half of said lands.

Your orator, therefore, asks the aid of this court in the premises, and that the above-named defendant, Frederick Diener, jr., may appear before this court, and true, direct and perfect answer make, without oath (his answer upon oath being hereby waived), to all and singular the matters and things hereinbefore stated and charged, as fully and particularly as if the same were here again repeated, and he thereto distinctly interrogated paragraph by paragraph. And that the said defendant, Frederick Diener, jr., may be decreed to release to your orator all claim to the said undivided half of the said lands and premises, and to pay to your orator his costs in this behalf expended, and that your orator may have such further or other relief as shall be agreeable to equity and good conscience.

Prayer for process, &c.

The defendant Frederick Diener, jr., answered, setting forth that he and the said Carl Diener, mentioned in the bill of complaint, are sons of the complainant, and “ that he, the said complainant, having derived a large amount of money from the mother of this defendant and the said Carl, and intending to secure a portion thereof to this defendant and his brother Carl, the said premises were purchased at the time and for the consideration in said bill of complaint mentioned, for this defendant and the said Carl, and tbe conveyance from the said Martin and wife was made and executed to vest this defendant and the said Carl with the title of said premises' therein described, and *486not tlie said complainant and the said Oaxl, as in said bill untruly stated.

And this defendant further shows, that he is one of the grantors named in said deed, and was the real and true person referred to and described, or intended so to be by the said deed, and not the said complainant, and that such conveyance was. intended as well for the benefit of this defendant as the said Carl, as in equity it might well be, and that after the making of said deed, the same was delivered to this defendant and the said Carl with the full knowledge and free consent of the said complainant at the time, and that for a long period.afterward the said complainant yielded his full assent thereto, in no wise claiming or pretending that the title to said premises was, or was intended to be, vested in the said complainant, but in this defendant and the said Carl, and so continued to assent to the title of this defendant until an unexpected and unfortunate estrangement between this defendant and his said father, when the said complainant, contrary to good faith and the true intent and meaning of said deed, designing to oppress this defendant, denied the title aforesaid of this defendant, and claimed to be seized of the said premises, which said claim, and all right or title, either in law or equity, of the said complainant, in his said bill set forth, this defendant expressly denies.

And this defendant denies all unlawful combination, &c.

May 30, 1853, the complainant, by leave of the court, filed a supplemental bill, making Charles Schley and Caleb Wall defendants, charging that they had become purchasers from the defendant Frederick Diener, jr., of his interest in the property in question since the filing of the original bill.

To this the defendant Schley filed his separate answer, August 24, 1853, as follows:

This defendant, &c., answers and says, that he admits that on or about the second day of October, 1852, this defendant and the said Caleb Wall purchased and took a conveyance from the said Frederick Diener, jr., in the said bill named, of all his right, title and interest, legal and equitable, in and to the lands and *487premises in. said bill described, to wit: all tbe undivided one-balf of those certain pieces or parcels of land situated in tbe county of Walworth aforesaid, and described, &c.; and that this defendant and tbe said Caleb Wall did, from that time until about tbe fourth day of November, 1852, claim and pretend that by virtue of said purchase and conveyance, and as assignees of the said Frederick Diener, jr., for a valuable consideration they, this defendant and the said Caleb Wall, became and were tbe legal and equitable owners of the undivided one-half of the said lands and premises above described, and in and by said bill claimed to be the property of the said complainant.

And this defendant further answering, saith, that prior to the filing of said bill of complaint against this defendant and the said Caleb Wall, and before the service of subpoena upon them or either of them, to wit: on or about the 4th day of November, 1852, the said Caleb Wall sold and conveyed by deed to this defendant all the right, title and interest of him, the said Wall, in and to the said lands and premises, and that this defendant is the sole owner thereof, and of all the said undivided one-half of the said premises above described.

And this defendant utterly denies all fraud or unlawful combination and confederacy in the said bill charged, without that any other matter or thing material or necessary for this defendant to make answer unto, and not herein or hereby well or sufficiently answered unto, confessed or avoided, traversed or denied, is true to the knowledge or belief of this defendant.

All which matters and things this defendant stands ready to aver, maintain and prove, as this honorable court shall direct, and humbly prays to be hence dismissed with his reasonable costs and charges, in that behalf most wrongfully sustained.

The separate answer of Caleb Wall was filed August 27, 1853, and is in substance the same with the answer of Charles Schley above given.

The complainant filed general replications, and the cause was referred to Wm. 0. Norton, as a special commissioner, to take testimony therein.

*488The testimony taken before the commissioner was very voluminous, and many objections taken thereto, upon tbe bearing of which read, together with the exhibits produced, the court ordered that a feigned issue be framed and submitted to a jury, “to inquire and determine whether the legal title to the lands described in the deed, mentioned and described in the pleadings in this cause, bearing date the 18 th day of October, A. D. 1851, purporting to be executed by John Martin, and Philomela, his wife, to Frederick Diener and Oarl Diener, was, at the time of the commencement of this suit, to wit: on the 14th day of September, A. D. 1852, in the said complainant, and the said Oarl Diener, and was then had and held by them,” and “ that, on the trial of the said feigned issue either party may read in evidence any deposition of any witness taken on either side, before Wm. 0. Norton, Esq., a special commissioner appointed for that purpose in said cause, subject, however, to any objections to any of the testimony contained in said depositions, when due objection thereto was made before said commissioner, or may examine said witnesses on the said trial, and may introduce any further or other testimony on said trial, which either of them may deem proper, and which is pertinent to the issue, &c.”

The following is the substance of the testimony and evidence produced on the 'trial of the feigned issue, with the objections and exceptions made and taken on the trial.

The complainant offered in evidence a deed, as follows:

*“*This indenture, made the thirteenth day of October, in the' year of our Lord one thousand eight hundred and fifty-one, between John Martin, and Philomela, his wife, of Spring Prairie, county of Walworth, and state of Wisconsin, of the first part, and Frederick Diener, of the same place, and Oarl Diener, of Germany, parties of the second part, witnesseth, &c.”

(This deed convej^s the premises described in the bill of complaint, being the premises in dispute, with full covenants, and is duly signed and acknowledged,'and witnessed by A. Bade and David George.)

The complainant produced the deposition of Lyman Cowdrey, taken before the commissioner, Wm. 0. Norton, by which it ap-*489pearecl that Frederick Diener, sr., paid to Jobn Martin, tbe vendor of tbe premises in dispute, tbe consideration money for tbe purchase of tbe premises, amounting to over $2,000, at Elk-born, in Walworth county, in October, 1851; that Martin, Bade, David, George and witness, were present when tbe money was paid, and a deed of the premises delivered; that tbe deed was taken to tbe register’s office for record, and that neither Frederick Diener, jr., nor Carl Diener, was present; and that Bade appeared to be acting as agent of tbe complainant and Martin.

Tbe complainant called also Johnson Gates, who testified that be had known tbe Dieners since 1851, both living on the Martin farm. Tbe witness worked for tbe complainant from a week or two after be moved on to tbe Martin farm, which was in tbe fall of 1851, until tbe fore part of July ensuing, most of tbe time off and on. “ I worked on the' John Martin farm most of tbe time; tbe old man Diener seemed to have control of the farm during tbe time that I resided in tbe neighborhood; complainant occupied tbe farm at that .time; - Frederick Diener, jr., was there most of tbe time, and until be left, tbe winter following, be appeared to act in tbe capacity of a hired man, and told me that be bad $10 or $10J a month, as near as I could understand him; be talked very broken English; be told me this in tbe fore part of tbe winter; be appeared to be under tbe control of complainant during tbe whole time we were both there; I think I never saw Frederick Diener, jr., there but once after be left, and then be came after bis clothes; that was a few weeks after be left; I have never seen him about tbe premises since; I have been to Diener’s several times since last January, and complainant still occupied.

“ I know Carl Diener, son of defendant; be came there next summer, to complainant’s, about the first of May, A. D. 1852; be came there and worked for complainant; be has lived there from that time to this; tbe old man Diener (complainant) has seemed to have control of tbe place since Carl Diener came there, tbe same as before; tbe defendant, Frederick Diener, jr., told me be was twenty-four years old in tbe fall of 1851; defendant *490lived on tbe .place all tbe time until be.left in tbe winter or spring-of 1852 ; complainant assumed tbe direction of all matters concerning tbe farm; tbe defendant was a single man at tbe time be lived there, or appeared to be,, and complainant seemed to be in a married state, bad a woman they called bis .wife ; Frederick Diener, jr., asked me bow much working .men could get a month in this country; I told him that Germans got $15 or $12 a month, after they bad learned tbe ways of this country. I then asked him bow be worked, and be said bis father gave him $10 or $10.50 per month; I never saw complainant pay him anything for .work; Carl Diener, I think,, is about ..sixteen years old.”

William Baumbach, on tbe part of complainant, being sworn, complainant’s counsel shows to witness a book marked exhibit B. Witness says be has compared it with a paper marked .exhibit C, and .that exhibit C contains a literal translation of tbe contents of,exhibit B, . Complainant’s..counsel then gives exhibit B and C in evidence.. Defendant’s.counsel objects .to their admission. . Witness further says, exhibit Bis in tbe German language, and be is acquainted with both German .and English.

*Exhibit 0, Translation of Exhibit B.*

. Account of tbe wages of my son, Frederick Diener. tbe same for bis wages from October 15th. 1851. Receives

Tbe first three months at $7 00 $21. 00

“ next three months, 6 00 18 00

“ again, next three months, 11 00 “ last following three months, 13 00 33 00 *8Í) 00*

$111 00

On tbe part of complainant, .Andrew Betzig, being sworn (through, a sworn interpreter,. William Baumbach), said: “ I am acquainted with Frederick Diener, jr., and the complainant; have been so acquainted since my childhood; have been intimately acquainted for the last eight -years; I am the brotber-in-law of complainant; I believe the complainant, and his son, Frederick Diener, jr., emigrated -to this country in the year *4911851; I came with them; when they started from Germany, I don’t know whether Frederick Diener, jr., had any money or not on the way here; I saw him have $25 ; Frederick Diener’s father paid for the son’s outfit and clothing, and fare to this country; Frederick Diener, jr., is now about twenty-six years of age (admitted that Frederick Diener, jr., had no means of his own at the time he came to this country ; admitted that the complainant was worth about eight thousand dollars when he left Germany, and brought that amount with him when he came to this country); I was present in Milwaukee during negotiations for the purchase of the Diener farm (said farm being the one in dispute in this suit); the terms of the purchase were agreed upon there (meaning Milwaukee); I was with the complainant all of the time during the said negotiations for the said farm; Frederick Diener, jr., was present also at that time; I think.the bargain was made in the fall of 1851; I think it. was in the early part of October in that year; it was two or three weeks previous to the time of complainant’s taking possession of said farm; Frederick Diener, jr., took no part in the negotiations for the purchase of said farm, in my presence; I was sitting with Frederick Diener, jr., during the negotiations, in the same room. (The foregoing, respecting negotiations, was duly objected to.) Frederick Diener, jr., at this time, was in ■ the employ of the complainant, at a yearly salary; when the complainant took possession of the farm, I was living with him, and remained with him nearly a year; I think Frederick Diener, jr., lived with the complainant about three months after he took posssession of the farm; the complainant controlled and carried on the farm; Frederick Diener, jr., seemed to have no control over it, and made no claim to any interest on it to my knowledge.

“ The signatures to the memorandum, in the book heretofore offered in evidence, were made by Frederick Diener, jr., in my presence.

•'* Complainant had three children when he *left*Germany, Frederick, jr., the oldest, Carl, and one daughter, now in Germany.

“ The terms of the purchase, of which I have spoken, were $3,000 for 226 acres; the negotiations continued about one hour; *492tbis was tbe only time when I was present during any negotiations in regard to said farm; tbe complainant-did not speak English during tbe negotiations ; be could not; Mr. Bade acted as interpreter; tbe complainant told me that Mr. Bade, of Milwaukee, acted as his friend and adviser, and also Captain George, of Spring Prairie.”

*Question.*— “ State tbe substance of a conversation, in relation to said farm (if you beard any), between complainant and Frederick, jr., previous to tbe time Frederick left tbe complainant ?” (Objected to.)

“ Tbe complainant came borne from Burlington, tbe night before Frederick, jr., left tbe farm, and said that be bad found out in Burlington, that tbe deed of tbe farm was not executed in tbe manner be wanted to have it done, and believed be was deceived in regard to it; Frederick, jr., was present when be said tbis; tbe following morning, at tbe breakfast table, be made the same remarks that be did tbe night before, on account of tbe deed, and I noticed that Frederick, jr., who sat by my side at tbe table, trembled so that be could hardly bold bis fork; soon after that he got up, lit his pipe, and went away, and has never returned; Frederick Diener, jr., said nothing, looked pale and seemed sick; tbe complainant, at be time they sat at the table, said he thought that tbe name of bis son, Frederick, jr., was inserted in tbe deed instead of bis own ; be said be found tbis out in Burlington, tbe evening before ; tbe complainant said be did not think such a cheating operation could take place. Tbe paper now shown to me, marked Exhibit D, is in tbe band writing of Frederick Diener, jr.; I know bis bandwriting.”

William Baumbach, on tbe part of tbe complainant, testified “ That tbe paper attached to exhibit D, translated exhibit E, is a correct translation of said exhibit D. I saw Frederick, jr., in Racine, and bad a conversation with him in regard to difficulties with complainant about tbe Diener farm ; during tbe conversation, I asked him if be bad any just claim to said farm, which be did not seem to understand ; I then asked him whether tbe farm was standing in bis name or bis father’s, and be said be did not know; be said that be bad taken the course be bad in re*493gard to the farm for the purpose of keeping his- mother from getting it away from his father; this was in the latter part of the winter in 1852 and 1853.”

All the evidence in regard to conversation is objected to.

On the part of the complainant, Frederick Keuper testified: “ I am acquainted with the two Dieners, parties in this suit; in a conversation which I had with Frederick Diener, jr., he admitted that the farm was bought by the complainant, and with his own money, but said the deed was made out in his (Frederick, jr.’s) name, and he meant to hold it.

“ The complainant has always had the possession and control of the farm, and still has it.”

Complainant then offered in evidence exhibit D, with its translation E:

“ *Exhibit E, Translation.*

■“ *My dear Father:*— The estate of my mind did not permit me to explain myself verbally to you, dear father. It is my desire, dear father, as long your eyes are open as well as afterwards to take care for you; as it is the duty of a child to take care for the father. 0 what miserable (mean) slanderers have ventured to separate, in such an impudent manner, a father from the child. Might go such people to the devil and hell, do not know, what they else should be worth. It is my intention to make my living by good farmers and to do to you, my dear father, what I am able in my powers,- so help me God for ever and ever. Might assist the sacred Being, that the abominable trade of those wretched slanderers might be cut off. Therefore, be so kind and send by the bearer my things, as well as you will hand to him my due wages, $8 and 5s, and let you give receipt for it, of that sum; you have to deduct a debt for received stockings from your.dear wife. For the chest, which I received of you last night, I tender to you my kindest thanks. Might keep you this land in everlasting health which wishes always your true son, (Signed) “ FREDERICK.

“ *Spring*Prairie, *February*2, 1852.

“ That one hundred dollars I owe you for expenses for me, according to note, I will pay you after due time. F.”

*494Charles Diener, on the part of complainant, testified':' ■ “ I am a son of the complainant, and brother of Frederick, jr., defendant; (admitted by the defendant that for three years-prior to complainant and defendant’s coming to this country, Frederick, jr., was not in the employ of his father, and that the son of complainant (Frederick) usually signs his name Frederick Diener, jr., and that soon after the conversation aforesaid- with Doctor Baumbach, Frederick, jr., left this part of the country): Witness says that he has heard nothing from Frederick since he léfí, and his friends do not know where he is. I live with the complainant — have lived with him since May 2, 1852. My father got the money which he brought to this country from the sale of his farm.' The farm was no part of my mother’s estate. My mother had a farm aside from that. :

“ I saw a letter written by Frederick, jr., to my mother in Germany; this was before I came to this country, and after the complainant and Frederick came to this country; the last I saw of said letter, my mother had it in the house in Germany; my mother now lives in Germany; she has not been to this country since that time; my father and mother have not lived together as husband and wife for more than eight years; I know the contents of the aforesaid letter; it was written and signed by Frederick Diener, junior, in America; I knew his handwriting.”

*Question.*— ■“ State the contents of that letter ?”

Defendant objects to proof of contents of letter by witness, and also to the contents themselves, as evidence.

*Answer.*— “ It stated, in substance, that he (Frederick, jr.) gave the interpreter, privately, $10 for to make the deed in the names of myself and my brother, Frederick,-jr., and, also, that if his father should find it out, he (Frederick, jr.) had made an arrangement to go and live with Captain George; I cannot state the contents 'of the letter word for word.”

*Oross-examination.*— “It has been about one-year and half since I saw the letter; I was about 15 years old when I last saw it; when-my father and mother ceased to live together as husband and wife, I was about eight 3'ears old ; my information, in rela*495tion to tbe farm I spoke of as being my father’s, in Germany, came from my father and from no other source; I cannot swear, in fact, that the farm did not come originally from my mother; my mother does not possess a very large property; about two thousand dollars more than my father; the money which my father brought to this country came by the sale of said farm; my mother supports my sister in Germany; my father and mother lived in Auhal Keaten; it is under the king of Prussia and is a duchy.

John Martin, called by the defendants, testified: “ I know Frederick Diener, complainant, and his son, Frederick Diener, jr.; I first knew them in the fall of 1851; I had engaged Powers & Schley, of Milwaukee, to sell the farm now occupied by the complainant, which I then owned; I lived on said farm at that time. The complainant came to my house with Mr. Bade, for the purpose of looking at my farm, in the latter part of September of the said year 1851; I bargained with complainant for a sale of the farm, through Mr. Bade, as his interpreter, in the month of October, between the 10th and 15th, 1851, at my house r I mean the farm now occupied by the complainant, and situated in the town of Spring Prairie, Walworth County. On Monday, I think, the 13th of October, of said year, I signed a deed of the farm; Mr. Bade drew the deed.”

The complainant here objects to the showing, by the witness, the contents of any deed, or any statements made by Mr. Bade or any other third person. .

“ I signed one deed presented to me by Mr. Bade; he was the agent of myself and the complainant, as I supposed ; Mr. Bade spoke for complainant throughout all of the negotiation; I executed the de^ presented to me by Mr. Bade and gave it to him; he left the room and was gone about half an hour, and then returned and requested me to take back that deed and execute another, because he (Bade) said the complainant wished it to be conveyed to his sons; the first deed was then taken and put into the stove in my presence and burnt up; Mr. Bade put it in stove; at the time the first deed was executed, I had not received the consideration for the farm; the first deed was to com*496plainant alone ; another deed was then made to the sons, immediately after the burning of first deed; I was in my room unwell; the second deed was drawn in my presence by Mr. Bade; some one else was present; don’t recollect who; the deed was duly executed by myself and wife, and handed it to Mr. Bade, and Mr. Bade, complainant, Captain George and myself got into a carriage and went to Elkhorn. (The deed referred to is the same one offered in evidence, and marked Exhibit A. This is admitted by the complainant.) The deed, as executed by me, was intended to be executed to the sons of complainant. The Frederick Diener named as grantee in the deed, was the son of complainant. The deed was delivered and the money paid at Elkhorn; Mr. Bade paid me the money for the complainant; Captain George was with us; he had been sent for by complainant and went at his request. (Complainant here objects to showing by the witness anything which Captain George said or done, for the purpose of establishing his agency, or for any purpose.) Captain George left this country early last spring; I don’t know where he is; Captain George also interpreted between. He appeared to be the confidential friend and adviser of the complainant, and he represented bi-m and claimed to speak for him; Mr. Bade was my agent, that is Powers & Schley were my agents, and they sent him there as interpreter, which was actually necessary to transact business with Mr. Diener (complainant); Mr. Bade, Diener, George and I returned together; on our return, about four miles from Elk-horn, Mr. Bade and Diener were in earnest conversation with each other, they both turned around and Bade said there was a mistake in the deed, that the word junior was left off of Frederick’s name; Bade explained to me that the old man’s name was Frederick Diener, and the young man’s nammwas Frederick Diener, jr., complainant at the same time said (putting -his hand to his breast), son, son, son ; a consultation was then held, and it was concluded the best way would be to get some one to go there and alter it; this conclusion was communicated to complainant, and he appeared to be satisfied; after we got home a conversation was held between Mr. Bade, complainant, Captain George and Mr. Cole, of Burlington, in relation to Cole’s going *497to Elkhorn and making the required alteration in the deed; complainant wished him to go and make the alteration, as far as having the jr., added to the name -of Frederick Diener.” Witness shown paper, marked Exhibit F, dated October 14th, 1851, purporting to be signed by John Martin, Frederick Diener and Frederick Diener, jr.: witness says: “they were signed in my presence, and are the signatures of the complainant, defendant and himself, meaning witness ; Albert G. Oole wrote the agreement aforesaid at my house, on said farm, and it was signed there, according to the best of my recollection. Frederick Die-ner signed the agreement, representing his son in Germany. Frederick, junior, was at my house when we returned from Elkhorn.

*Oross-exa,mined.^-u*The deed was delivered to Bade at my house ; that was the last I saw of it until four or five weeks ago. I saw Frederick Diener and Frederick Diener, jr., after I had signed article of agreement, marked exhibit F, write upon it; I cannot say what they wrote; Captain George acted as interpreter at that time; I did not understand anything that Mr. Diener said; all that I could understand from him was by signs; he could not speak a word of English as far as I know; it was from the interpreter alone that I understood the intentions and wishes of Mr. Diener; I had no other means of knowledge. It is my opinion that at that time Mr. Diener could not speak or read the English language. I have not, to my knowledge, in a letter to Albert G. Cole, or otherwise, stated in substance or to the effect that the deed was different from what the complainant intended it to be, or that he was likely to find himself cheated. It is my opinion that I have never made such a statement. The terms of the purchase had been agreed upon before complainant came out to execute the deed. Complainant took possession immediately after the deed was executed. Schley, the defendant, is one of the firm spoken of as Powers & Schley in my direct examination. There has been difficulty between myself and complainant, and there is still difficulty about it, on account of his occupying reserved rights, and ordering me off from the reserved rights. I have never, to my knowledge, threatened Q£ *498stated in presence of E. Keuper, or any other person, in substance, or to tbe effect, that I would use advantages to injure tbe complainant, or in any manner injure or assist to injure him.

1 have never written to complainant, to my knowledge. I think I should have remembered it if I had. On the subject of his interests here I mean.”

*Direct resumed*— Recalled *by the defendant.*— “ The instrument, marked exhibit E, was written out in full, as it now appears, except the signatures, before I signed it.

*“*Mr. Bade carried the deed with him to Elkhorn. I moved off the place a day or two after complainant moved on.

“ The reserved rights of which I spoke, were: the use of a burial ground, and the use of a road across the place. They were reserved in the deed, from me, of the farm, heretofore exhibited.

■ “ When I say, to my knowledge, I mean to the best of my recollection.”

Albert Bade, called by defendants, testified: *“*I reside in the city of Milwaukee; I am a native of Holland; I have lived in this country about ten years; I am familiar with German, Dutch and English languages, can speak and write them. I am clerk of the board of supervisors of Milwaukee county ; in the month of October, 1851, I was in the employ of Powers & Schley, of Milwaukee ; I am acquainted with Frederick Diener and Frederick Diener, jr.; they are from Germany; I became acquainted with them in the fall of 1851, in the city of Milwaukee, through negotiations for the purchase of a farm. Through my agency, as clerk of Powers & Schley, they made a-purchase of John Martin, of Spring Rrairie, Walworth county, the farm then occupied by him and now by complainant; I was present when the sale of said farm was consummated; it was done through my agency. The deed was executed upon the farm some time in the month of October, 1851think it was before the middle of said month; I acted as notary public in acknowledging the deed, &c. I drew a deed in the city of Milwaukee before I came out with complainant and his family; this was executed by John Martin and *499bis wife, and afterwards destroyed; before it was destroyed, I went out doors, and went where complainant and Captain G-eorge and Frederick," jr., were standing talking to one another ; I told them there, that the deed was executed, and that John Martin was ready to go to Elkhorn to have’ it recorded; then complainant; Captain G-eorge- and .'Frederick, jr:, began to talk to me, stating1 that they had come to the conclusion- to--make another deed, in'the name of his sons, Frederick and Charles, and that complainant would give his (then) wife $1,200 or $2,000 which he had in'Buffalo .or New York city. .The complainant stated this in presence of the others; he said that the money which he brought with him, came out of the estate-of his first wife, which was allowed him by the court in a divorce suit with her; he did not seem to be on friendly terms with his present wife'; the ’wife from which he was divorced was the mother of Frederick, jr., and Charles Diener, complainant said.

“ Complainant then instructed me to draw another deed in the names of his sons, Frederick and Charles Diener.' The old deed was not satisfactory on account of its being .drawn to Frederick Diener. I went in and-told John Martin, and he consented- to execute another,- and the old deed was destroyed in presence óf John'Martin and'his wife. " I" then"drew' another One, .’in John Martin’s-room. I followed the directions, of complainant in drawing the deed. -I am now shown' am: instrument, marked exhibit A, purporting to be a deed,' from John Martin: and his wife to Frederick Diener and Charles Diener,dated-October 18, 1851: This is the second deed’ drawn by me, as aforesaid,.and-was executed in my presence, and' I to'ok the acknowledgment of. it, as notary public. Frederick■ Diener, jr:,' son.of complainant, was present at tbe time, on the farm. Complainant said to me; you had better draw the deed to my; Sons,' Frederick and Carl.”.

*"Question.*— “Was the Frederick-Diener, named"'in- the deed shown to you, marked exhibit Aj as- one :of tbe grantees therein, intended’at the -time for’1 -the complainant,¡Frederick' Diener, or for his son Frederick?” '■ • ■

To which complainant objects.-

*' Answer:-**— u At that- time it was-complainant’s intention: to *500draw the deed in the sons’, Frederick and Oarl Diener, names ; I drew the deed to Frederick and Oarl Diener.”

*Question.*— “ To which of the two Frederick Dieners did you draw the deed ?”

Objected to by complainant.

*Answer.*— “ To Frederick Diener, the son, according to complainant’s directions; there was nothing said to me about having the deed drawn to complainant and his son Oarl, by complainant, at that time; nothing was said to me by complainant about an intention that he (complainant) should have the farm while he lived, and his sons after his death; I thought he did not take me into his private confidence at that time; in mentioning his son, Frederick, complainant did not call him Frederick, jr., according to my recollection. After this deed was executed, we went to Elkhorn; Captain George, John Martin, complainant and myself went to Elkhorn; at Elkhorn the deed was handed to the register, to be recorded, and complainant gave me the money to pay to John Martin; I paid Martin three thousand dollars ($3,000). We then started for home; on the way home complainant, Captain George and myself got to talking about the matter; either Captain George or the complainant, don’t recollect which, asked me if the word junior was after Frederick’s name,'in the deed; I told them no; complainant then commenced talking with Captain George; complainant did not seem to like it that the junior was not attached to Frederick’s name; then they talked to me about it, and wanted to know what was to be done; I told them I couldn’t say, if they wanted anything done, they must talk to Mr. Cole.”

*Question.*— “ Did you hear the complainant say, on the way home, how he intended to have the deed drawn or executed ?”

To which complainant objects.

*Answer.*— “I did not attend particularly to the conversation with complainant, on the way home. I heard complainant say to Mr. Martin, my sons, pointing to himself, or something of that kind. I returned from Elkhorn to Martin’s place. Captain George acted in these transactions as complainant’s friend. Captain George and myself both acted as interpreters for the com*501plainant during tbe transactions. Towards tbe last of these transactions Captain George acted more than I did as interpreter for complainant.”

*Cross-examination.*— “ Tbe Schley to which I refer, the defendant here, was one of the firm of Powers & Schley, for whom I acted as agent. At the time the rupture took place between the complainant and his son, I was a clerk for Schley, according to my best recollection, and had been from the latter part of 1850, or fore part of 1851. I did not understand the conversation between Captain George and complainant, on the way home, of which I have spoken, my attention being otherwise directed. I came out with John Lace, under the directions of Schley and Wall, the defendants, to make a settlement with Die-ner, if I could — if not, to leave the business to John Lace and the deputy sheriff of Elkhorn and Lyman Cowdrey. John Lace got possession of some twenty-five head of cattle and two horses from Mr. Diener’s farm, or the one occupied by him, according to tbe best of my knowledge. On the morning after he (Lace) took possession of the property, we started for Milwaukee with it, and the deputy sheriff went home. This was after Frederick, jr., left his father’s, and about a week before Lace was shot. (All the above testimony relating to the removal of personal property was objected to.) The deed, exhibit A, was drawn as directed by complainant, and was accepted by him. I did not read it to him, but explained to him the material parts of it. The deed was handed over to the register by him, or by his directions. I don’t recollect whether I was present or not at the sale, from Frederick Diener, jr., to Schley and Wall. From what I saw of the transactions, I believe that the complainant understood well what he was about at that time. During the time the deed was executed, and when we came back from Elkhorn, complainant, I believe, understood well what he was about all of the time during the whole of the transactions in relation to the farms, and I have never, since the execution of the deed, changed my belief in regard to that.”

*Question.*— “Have you ever stated in presence of, or to the complainant, in substance, that the deed was drawn in the name *502of tbe old man and tbe son, that it was intended to be in tbe name of tbe complainant ?”

*Answer.*— “ I don’t recollect.”

*Question.*— “If you bad so stated, would you be likely to recollect it?”

*Answer.*— “ I don’t know.”

*Question.*— “What do you think about it ?’

*Answer.*— •“ I have got no opinion about it.”

*Question.*— “Have you stated to complainant, or in bis presence, in substance, that Frederick, jr., bad nothing to do with tbe farm ?”

*Answer.*— “ I don’t recollect that I have.”

*Question.*— “ If you bad so stated, would you have recollected it?”

*Answer.*— “I do not know.”

*Question.*— “ Have you ever.stated in writing, or otherwise, in substance, or to tbe effect, that tbe deed was drawn in tbe name of the complainant and his minor son?”

To which question tbe defendant objects.

*Answer.*— “ I don’t recollect whether I have or not.”

*Question.*— “ If that bad been tbe case, would you be likely to recollect it ?”

*Answer.*— “ It is more than I can tell.” •

*Question.*— “ Have you stated in presence of Frederick Keuper, in substance, that tbe deed was drawn in tbe name of tbe old man and Carl, that it was not intended to be in tbe name of Frederick, jr., or that Frederick, jr., bad nothing whatever to do with tbe farm ?”

*Answer.*— “ To the best of my impression I have not.”

*Question.*— “ Did you state to A. G. Cole,- while on .your way to Yienna, or while with him in a carriage, or at any other time, in substance, that tbe complainant’s real intention was to arrange that he could control the farm or property while he lived, and that it should go to bis children after his death ?”

*Answer.*— “ To the best of my impression I did not.”

*Question.*— “ Did you, in a conversation with Henry Martensen upon the subject matter of Frederick, jr.'s, claims to the projoerty *503in dispute Rere, or iu reference to said deed or farm, state, in substance, that if tRe old man, Diener, Rad not made you mad, it would Rave been different witR Rim ?”

To wRicR question defendant objects.

. *Answer*— “ To tRe best of my impression I did not.”

*Question.*— “ WRile speaking or writing upon tRe subject of tRe drawing and execution of tRe deed aforesaid, Rave you stated orally, in presence of Frederick Keuper, or in writing, or otRerwise, in substance, tRat tRe complainant did not know wRat Re was about ?”

To which question defendant objects.

*Answer.*— “ To tRe best of my impression I Rave not.”

*Question.*— “ Are you a man of ordinary good memory ?”

*Answer.*— “ I tRink I am. I recollect of sending a letter to Mr. Barnes by tRe old man Diener,'or Keuper, at tRe request of Mr. Barnes and tRe old man Diener; I wrote it and sent it from Milwaukee.

All tRe above in regard to the letter defendant objected to.

*Direct resumed*— Question.-—“WRat. is your best impression about Raving made such statements mentioned and referred to in the questions above, to which you Rave answered, you did not recollect ?”

*Answer.*— “ My best impression is, I did not make such statements.”

William Riel, called by defendant and sworn, deposes and says : “I live in the town of Burlington; Rave lived in the neighborhood about five years; I know Frederick Diener, the complainant in this'suit; Rave known Rim ever since lie lived in Walworth county; I know Frederick Diener, jr., one of' the defendants in this suit; some time the first winter Re was Rere I Rad a conversation with the complainant; it was before Frederick, jr., left Ris father’s; I am a German, and speak the German language; on complainant’s farm, in Walworth county, I was there, and complainant showed me the whole farm, and Re (complainant) told me Re Rad bought the farm for Ris two boys, Frederick and Charley ; Frederick was there, and Re said Re expected Charley from Germany; complainant said some *504friends told bim to bave a deed tbis way, for, wben tbe old man (complainant) died, it would save tbe trouble of mating a new deed.

“ Complainant told me that be intended bis sons to bave it after be was dead ; I understood from tbe whole conversation tbat complainant was to bave tbe farm while be lived, and tbe sons wben he died ; tbis was complainant’s intention, as I understood it; I think Frederick Keuper was present; tbis conversation took place a little behind tbe cattle yard.

■ “Frederick Diener, jr., was not there ; I understood this intention from complainant himself; Frederick, jr., was not there during the conversation.”

Albert G. Cole, on the part of defendant, being duly sworn, deposes and says: “I reside in Burlington; have been here about seven years; I know the complainant in this suit, and I know Frederick, jr., also, the defendant; I know John Martin; I recollect the sale of the farm on which John Martin lived in 1851; I was not present at the sale; I knew of the sale the next morning after it took place; I went to John Martin’s place, on Spring Prairie, and the parties had gone to Elkhorn, as I was informed; I mean complainant, John Martin, Mr. Bade, and, I think, Captain George; Mr. Martin was then living on the place; I was there wben they returned from Elkhorn (I mean tbe men aforesaid); I Avent there at tbe request of John Martin, and assisted in tbe sale of tbe personal property that was sold upon the occasion, from Martin to Dieners; through Captain George and Mr. Bade, as interpreters, I had some conversation with complainant in reference to the deed, which had been executed, of the farm ; from appearances I supposed that Captain George and Mr,, Bade were acting as agents, interpreters and friends of the complainant.”

*Question.*— “ What was the substance of the conversation referred to ?”

To which question the complainant objected.

*Answer.*— “ There was a good deal of conversation, considerable talking, and it was said by some of the parties that there was a mistake in tbe deed, and tbe mistake was, it should be *505Frederick Diener, jr., instead of Frederick Diener; tbis was said in presence of complainant by Captain George or Mr. Bade, I don’t know which ; after Mr. Bade left I assisted in an appraisal of tbe personal property ; I drew a bill of sale of said property from Martin to Dieners; I also drew a lease from Dieners to Martin ; I am shown exhibit, marked F ; the body of said instrument is in my handwriting, all of it except the signatures; I was present when it was signed; I cannot swear that I saw it signed ; I know the handwriting of John Martin; the first signature is in his handwriting; at the time it was signed, Mrs. Martin, John Martin, Frederick, jr., complainant, myself and Captain George, were there ; it is my best impression that I saw them both sign it, but yet I will not so swear — I mean by both, Frederick Diener, complainant, and Frederick Diener, jr., defendant.

*Question*— By *defendants counsel.*— “ To whom was the bill of sale of personal property, of which you have spoken, executed, and by whom ?”

To which complainant’s counsel objects.

*Answer.*— “It was by John Martin, to Frederick Diener, jr., and Charles Diener. I had a conversation with complainant, through Captain George, as interpreter or agent; it was about the same time of the execution of the bill of sale.”

Complainant objects to showing what the conversation was.

*Answer.*— “ Captain George was conversing with Mr. Diener, complainant, a short distance from me; after conversing a few moments, Captain George came to me and asked me how that deed could be altered; I told him that'he would have to send some person to the register’s office, and get the deed and bring it down, and have the alteration made as desired, with the consent of the parties to it, re-acknowledged, and send it back again. I told him I would go and see John Martin, and see if he would consent to it; I went and saw John Martin, and he said he didn’t care how many deeds he executed — he had already executed two, and would another if parties wanted it. Captain George asked me how much I would charge to do the business; I told him $10, and he then spoke to Mr. Diener, and said that Diener said he would not give it, but would give $5. This *506ended,the negotiation. Mr.. Martin was sick abed; , we were out of doors ;■■ I cannot say that I understood .from. Mr. Diener.any: thing that be said; complainant seemed very much interested and-animated in regard to the.matter, .A'll-these transactions,' of which I have spoken, in which I took any,part, occurred, on the same day that the sale of the land was • consummated, or on .the day following, or both.” ■ . -. - -

*Gross-examination.— 1*Frederick Diener, vjr., went to Captain George’s to live -after he left complainant; I am a lawyer by profession; I was dictated by,Captain George in reference-to names which I should insert, in the, papers which I drew there was but one conversation in which I was-named as being the one to alter the deed; I think,-at time.-of said conversation, I stood in .the street, out of the door yard; Mr. Diener, complainant^-i's a German; he could--not,speak-.or read the English-'language.;- I think-.1 never have had a conversation-with Frederick Diener, jr., through an interpreter or otherwise, in relation to these matters; I never agreed--to-.-go to Elkhorn to alter-the deed.” ■ .. . -..

.. *-Direct resumed..*— !(.Captain-George,dictated--the names.to.be inserted in the instruments I drew> in presence of complainant. Complainant was in the same room, out and in, while I was drawing them. ■ Captain-George pretended -to-explain-to complainant .the substance of- the-instruments drawn by me, and he appeared-satisfied with them.- Captain George spoke and read -the English language, with-fluency. - The value of the personal property-sold at-that time,-1-should think,- was about one thousand dollars ($l,-000). Complainant paid for it.

Frederick Keuper, recalled, says :■ — -

*Question.— 1*State whether or -not you- and the complainant had a conversation with Albert Bade, the person who has been a witness in reference to the,circumstances connected with' the conveyance of the Diener farm to complainant by Martin ?”

Objected to by defendant’s counsel.

*Answer.*— “ W.e had- a-conversation in Milwaukee, before the ■ commencement of this suit a short ■ time’. , Complainant and I went to the office of Powers & Schley, I think, to inquire of Mr. *507Bade wbat tbe facts were in reference to tbe deed for tbe Diener farm.”

Defendant objects to proof of any conversation with Mr. Bade at this time.

“ Mr. Diener told Bade tbat Frederick Diener, jr., intended to claim balf of tbe farm. Mr. Bade seemed very much surprised tbat be should claim balf of tbe farm. Diener asked bim (Bade) bow be understood tbe deed was made. He (Bade) tben told us (myself and Diener) tbe deed is executed in your (Diener’s) name, and your minor son, Carl, in Germany. .He (Bade), said tbat tbat was tbe way it was understood, and tbat was tbe way be bad executed tbe deed; tbat Frederick Diener, jr., hád nothing to do with tbe farm whatever. Tbe letter-now .shown to me, dated March 6th, 1852, purporting to be signed by A. Bade, was written by said Bade, and presented to us to be banded to Mr. Barnes. He (Bade) read tbe letter to us before be delivered it to us.” Complainant now offers said letter in evidence; it is marked exhibit G.

Defendant’s counsel objects to tbe introduction-of tbe letter in evideúce. Tbe letter is as follows:

“ Milwaukee, *March*6, 1852.

“ *O. D. Barnes, Bsq., Burlington.*— Dear *Sir:*I take tbe liberty of addressing you a few lines, according to tbe wishes of Mr. Frederick Diener, of Gardner’s Prairie. Mr. - Frederick Diener called at my office last year inquiring for farms, and • I went several times with bim in tbe country to look after some; at last be did made a bargain with Judge Martin, and *he*bought tbe place. By influence of bis son, be wanted me to made the deed in tbe name of bis sons, Frederick Diener, jr., and Carl Die-ner, because be was unacquainted with our laws, and bad the idea tbat be was to have possession of tbe farm during bis natural life. I, as bis agent and adviser, did not do so, for tbe simple reason tbat be did not understand where be was about, and I wrote tbe *deed in his name,*tbe old man, and tbat of bis minor son, Carl, in Germany.

He always did show a great deal of affection for bis minor son, *508Oarl, and told me about him, and wanted me to draw the deed in his name also. The deed was executed on the place, and Mr. Diener and Judge Martin went with me to Elkhorn to have the deed recorded and pay over the money. The money was paid over to me by Frederick Diener, the father, and *not*by the son, in the recorder’s office, in presence of the sheriff, recorder, &c., and I did hand the money to Judge Martin for Frederick Diener, in presence of Mr. Oowdry, I believe, the county clerk.

“ Any informations more wanted from me on the subject I shall be glad to give.

“ Yours respectfully, A. Bade.”

*Cross-examination.*— “In stating what Mr. Bade said, I have given his own words in English; he spoke them in German. I went to see Mr. Bade by request of Mr. Barnes and Mr. Diener. I have aided Mr. Diener, as a friend, in this suit.”

*Question.*— “ Have you spent considerable time in aiding Mr. Diener in the prosecution of this suit ?”

*Answer.*— “ I have spent considerable time, by his request, as an interpreter. I don’t know that I have been active in procuring testimony for Mr. Diener, except by the request of his counsel. He handed me a paper to hand to Mr. Diener and the deputy sheriff, to subpoena some witnesses. I went to Milwaukee for the purpose of seeing Mr. Bade about the execution of the deed. Mr. Diener said he would pay me for my time in so doing, as an interpreter. Mr. Diener did not need an interpreter to talk with Mr. Bade. I knew when I went to Milwaukee that there was to be a suit about this property. Complainant has told me that he bought the farm for his two sons, and they were to have it after he was dead.”

Albert G. Cole, called by complainant. — “ Mr. Bade stated to me, in substance, that Mr. Diener’s intention was to so arrange that he could control the farm while he lived, and that it should go to his children after his death; this was stated to me by Bade, in a carriage, while with him on the road to Yienna; we were then talking of the Diener farm.”

The above testimony of Mr. Cole objected to by defendants.

*509*Cross-examination.*— “ I Rad previously heard something about there being a mistake in the deed, and he stated to me that the old man, Diener, thought that the property could be entailed upon his sons, by drawing a deed in his name, and so conditioned, that after his death it should go to his sons alone ; but he (Bade) said he had advised the old man to the contrary, and therefore it was drawn in the manner it was. The old man did not want his present wife to have any of the property (Bade said). I had not previously heard of any other mistake in the deed than the one I have heretofore stated in my testimony, that I know of.”

The defendants also produced the deposition of David George, who testified as follows : “lam a dealer in fruits, cigars, &c.; am forty-eight years of age; reside in the city and county ol San Francisco, and state of California; was born and educated in Berlin, Prussia; German is my native tongue, but I speak fluently the English and French languages; I know complainant and defendants in this cause; have known them from three to four years; have known the defendant Wall, from eight to ten years; I first became acquainted with the complainant on the farm where I lived, in Walworth county ; he was introduced to me by one Bade; the defendant Frederick Diener, is the son of the complainant; I know John Martin; have known him about five years; I know of negotiations between complainant and John Martin, in the fall of 1851, about the sale of Martin’s farm, in Spring Prairie, and the circumstances came to my knowledge as follows: In the fall of 1851, I was sent for by the complainant and John Martin to come to Martin’s house to witness some negotiations concerning the sale of said farm; I went as requested ; found Mr. Martin in bed, he being unwell at the time ; the complainant was there, and also Mr. Bade ; there was considerable talk between Mr. Diener (the complainant) and Mr. Martin about the said farm, which resulted in Mr. Diener (the complainant) agreeing to pay the money for said farm the next morning, when the deed was to be delivered; the complainant, to bind the bargain, paid some money down; I believe about $200 ; Mr. Martin, the complainant and Mr. Bade desired me to *510be present tbe'next 'Morning td witness tbe sighing of tbe deed, payment of money, &c., for tbe farm'1; I do'1 not remember tbe price agreed upon; I took part' in' tbe negotiations for tbe sale of said farm at tbe request of tbe complainant- and Mr; Martin ; I acted in tbe capacity of interpreter and -witness ; at tbe time of the negotiations, I resided on a farm’distant about balf a mile from John Martin’s farm at Spring Prairie, Wal-wortb county; tbe result of tbe negotiations was, that a- sale was "made by John Martin, of tbe said farm, to Frederick Diener (tbe complainant), for bis sons, Frederick Diener and Charles Diener, and a conveyance was executed by tbe said John Martin to tbe said Frederick and Charles Diener; the- sons -of the- complainant; at the execution of tbe deed, John Martin was present, John Martin’s wife, tbe complainant-and-tbe defendant, Frederick Diener, jr., Mr. Cole, Mr. Bade, myself, and I believe tbe wife of the complain ant; I cannot say who drew tbe deed, as it was made before I came; I think Mr. Bade drew it; tbe sale was completed and tbe deed executed in John Martin's bouse, situated on the said farm; I cannot say of-my own knowledge, positively, whether or not there was more than one deed drawn'; tbe complainant told me that a deed had been drawn in Milwaukee, in which bis name alone appeared as grantee, and be wished to. have a new one drawn, and bad bad a new one drawn, in order to have tbe names of tbe sons, Frederick Diener and Charles Diener, substituted for bis own; tbe land was situate in Spring Prairie, Wal-wortb county, about a quarter of a mile from Yienna, and.to tbe best of my recollection, consisted of about one hundred- and thirty or one hundred and forty acres of good farming land; there was upon it a dwelling-house, bam and- stable ; one of the grantees'in tbe last deed was Frederick-Diener-,- and-be was the son of the complainant and is tbe defendant, Frederick Diener, jr., to bis suit; I know the Frederick: Diener, mentioned as one Of tbe grantees in tbe last deed was. - tbe son of tbe complainant, because tbe complainant told me so-; the Frederick Diener^ mentioned in the last deed as one of - tbe grantees,■ was intended at the time of the'execution of tbe deed, for-the defendant in this suit; in every allusion to tbe grantees in-the deed by tbe complain*511ant, in nay bearing, be stated that be meant and intended tbe deed to be drawn in tbe names of bis two sons, Frederick Diener (tbe defendant) and Charles Diener; I bad a conversation with complainant respecting tbe sale and tbe deed; it was about two days after tbe deed bad been executed; tbe complainant asked me whether, in my opinion, it would not be better to have junior affixed to tbe Frederick Diener mentioned in tbe last deed as one of tbe grantees; be thought tbe junior would better designate tbe defendant, Frederick Diener; be wished *me*to ask Mr. Cole bow much be would ask to alter tbe deed ; I asked Mr. Cole, in tbe presence of tbe complainant, what be would take to alter tbe deed; Mr. Cole said it was worth $10 ; tbe complain.ant thought that sum too much, and .offered Mr. Cole $5, .but Mr. Cole would not take less than $10; tbe complainant then said: *‘*It will make no difference, as every one knows the farm was bought for my sons, Frederick and Charles;’ T know Albert Gr: Cole; Albert G-. Cole acted in behalf of Mr. Martin and took part in tbe sale of the farm, Mr. Martin being unwell; Mr. Bade acted also on behalf of Mr. Martin and interpreted.

*“*The only conversations in which I acted as interpreter, was concerning tbe sale of tbe personal property. Mr. Bade acted as interpreter for tbe sale of tbe farm; I don’t recollect tbe words of tbe conversation between Mr. Cole and tbe complainant when Mr. Bade interpreted; it was concerning tbe sale of tbe farm; the conversation was in Martin’s bouse; I do know of a sale of personal property, stock, &c., of tbe said Martin, situated on tbe farm; Mr. Martin sold it to tbe defendant, Frederick Diener, jr., and to Charles Diener, sons of tbe complainant; tbe sale took place in tbe same bouse where the deed of the farm was executed, about one or two days after tbe execution of tbe deed, tbe same parties being present, with tbe exception of Mr. Bade ; Mr. Cole made out tbe bill of sale of tbe personal property, and interpreted for Diener, complainant; • I acted as interpreter for Mr Diener in tbe sale of the personal property, and as the general interpreter, Mr. Bade having gone away ; I acted at tbe request of Mr. Martin and tbe complainant; about five months after, the complainant told me he had bad trouble with *512his wife, and lie would like to know how he could get the farm into his own name, and asked me to speak to Frederick Diener, the defendant in this suit, and I spoke to Frederick Diener, the defendant, who said if his father paid him back what he had paid for it, he might have it, and he would deed it back; I told him perhaps complainant had not the money; he then replied, ‘ I will let him stay on my share of the farm, free of rent, so long as he livesCarl Diener, I believe, was at the time of the sale of the farm in the old country, but the complainant said he expected him every day.

“ Upon reflection, I remember a conversation had with Mr. Diener, the complainant, on our way to Martin’s house, in a carriage, where he was taking me to be a witness to the negotiations and to the execution of the deed relating to the farm; about twenty rods from Martin’s house, he (complainant) asked me to get out as he wished to have a private conversation with me about the farm of Martin’s; Bade drove on; the complainant then said, ‘ Friend George, if you should hear the deed read, don’t be astonished, as the farm is bought for my sons, Frederick and Charles; I don’t want my wife to hear it, and I wish you would tell Mr. Cole the same, that my wife may not hear it read.’ I then told the complainant that he must recollect his wife; he replied, laughingly, that he had enough money left for her ; I then hurried him to go to Martin’s house, as the party were probably waiting for him to execute the deed. I never saw the deed before it was executed. These are the only material facts in the case which I recollect.”

Deeds were also produced in evidence to the court, as follows: A deed of warranty from Frederick Diener, jr., to Charles Schley and Caleb Wall, dated October 1, 1852, conveying, for the consideration of $1, the undivided half of the premises described in the pleadings.

Also a quit-claim deed from Caleb Wall and wife to Charles Schley of all his interest in the same premises, dated November 3, 1852.

The feigned issue came on for trial at the May term, 1850, upon evidence, the material portions of which are before stated, *513except a large mass of testimony of an impeaching character and object, all of which is omitted, except such parts as are essential to the appreciation of the exceptions taken in that behalf; whereupon the jury returned the following verdict:

“ The jury find that the legal title to the premises described in the deed from John Martin and wife to Frederick Diener and Carl Diener, mentioned in the feigned issue in this cause, was, on the 14th day of September, A. D. 1852, in the complainant in the equity suit mentioned in the said issue, and the said tparl Diener, and was then and there had and held by them.”

The defendant thereupon moved the court to set aside the verdict and for a new trial upon the feigned issue, for the reasons and upon the records and papers 'mentioned in the following stipulation and exceptions.

*Title of the Cause.*— Feigned *Issue.*— “ It is hereby stipulated that the following annexed alleged exceptions taken on the trial to the charge of the court made therein, as amended by the plaintiff’s counsel, when settled by the court may be signed and sealed and filed as the basis of a motion for a new trial, as a part of the case on which to make such motion, and that said motion may be made upon such exceptions and the evidence on file and the minutes of the judge, at the earliest opportunity when the same may be heard, without further notice or proceeding — without prejudice to a bill of exceptions on the whole case, if said motion be denied.” (Signed.)

*Dated May*22, 1856.

The following are the exceptions referred to:

1. “ The said circuit judge then and there charged the jury that a deed of conveyance was not an agreement in such a sense as required that the minds of the grantor and grantee should meet. That it was rather the consummation or execution of an, agreement, and that upon that subject he could not instruct the jury as contended for by the defendant’s counsel upon the trial, that the intention of the grantors was a material inquiry for the. jury upon this issue.

“ To which the defendant’s counsel then and there excepted.

*5142. *“*Anri tbe said circuit judge did then and there charge the jury, that the intention of the grantors, as to whether Frederick Diener, the elder, or Frederick Diener, jr., was the person named, or intended to be named in the deed, was not material to their inquiry, but that the jury should only inquire as to the intention of the party making the purchase and paying the consideration.

“ To which said ruling and opinion the defendant’s counsel then, and there excepted.

3. “ The said circuit judge did also then and there charge the said jury, that the declarations made in the presence of Martin and his wife, the grantors, by Bade, as to the reason why the first deed to Frederick Diener was destroyed, and that the deed was to be executed to Frederick Diener and Carl Diener, the sons of Frederick Diener, sr., were not to be considered by the jury, and were no part of the *res*gestae, if made when the complainant was not present, unless accompanied by proof, that the interpreter correctly interpreted the language of the complainant to them.

“ To which the defendants excepted.

4. “ Also that an interpreter is not necessarily an agent of the party, so that what is said by him may be given in evidence against the party himself, if he has no knowledge of the language in which the declarations of the interpreter are made, unless accompanied by proof that the intefpreter correctly interpreted the language of the complainant to them.

“To which defendants excepted.

5. “ The said Circuit Court judge, also, then and there charged the jury that if they believed that Frederick Diener, jr., and the interpreter deceived and imposed upon Frederick Diener, sr., and procured the deed to be executed to Frederick Diener, jr., and Carl Diener, his brother, by the grantor, while Frederick Diener, sr., who made the negotiations for the land and paid the purchase money, supposed and believed it was executed to himself, they should find the issue for the plaintiff.

“ To which the defendant’s counsel then and there excepted.

“ Signed and sealed this May 22, 1856.”

*515• Thereupon the defendants moved fora new trial as follows :

■ “ And now come the said defendants, by Watkins & Stark; their solicitors, and move this court, upon' the records and papers on file therein; and upon the feigned issue and the finding of the jury therein-,-and upon the testimony on file and -the minutes of the testimony taken by the judge'on the trial of the said feigned' issue, and upon the exceptions alleged and taken on said trial to the admission‘of testimony as made in the minutes of said judge, and upon the exceptions to the rulings and instructions of the said judge, in -his charge to the jury on said trial; as stipulated, settled, signed and sealed,- and filed therein, for a rule or order that the verdict of the jury upon the feigned issue be set aside, and that a new trial, or a further trial upon-the-said feigned issue, be had, because:

*“*1st. Of the misdirection of the jury by the said judge, upon the trial of said feigned issue. •

“2d. Of the erroneous rulings of the-said judge, in excluding and admitting testimony on said trial, and

*“ Sd.*Because the verdict of the said jury is- clearly against the weight of testimony."'

The following is the- copy of the -minutes of the judge on the trial of the feigned issue, referred to in the motion- and stipulations above recited.

*TiÜe of the came,*— F.eigned. issue, *&C.*— ?Complainant offered in eyidence, by parol, the contents of a .letter written by defendant .to. his mother in Germany — the mother being the divorced wife of complainant; objected-,to by defendant.: Admitted — . read, in evidence.

*’■*-The complainant then moved. to suppress , the -testimony of David George taken on commission issued, to California, on the ground that it was not issued in conformity to the provisions of rule 59 of the Circuit-Court. > No-affidavit having Been filed and served-¿s required -by that rule.:; -But-it appearing that the com-' mission was issued in conformity with-the" -provisions, of-rule 61-, in- equity, the motion to suppress was denied, and the testimony, read-to, the jury by-the defendant. ■■ h ¡ -

*516Philomela Martin, defendant, testified as follows: “I am the wife of John Martin, and reside in Spring Prairie, in Walworth county; resided there in October, 1851.”

The deed to premises in question being shown to witness, she testified as follows: “I recollect my husband and myself executed this deed; it was executed in the west room of our house. Mr. Martin was sick at the time. Captain George and Mr. Bade, and complainant and defendant were present. Bade took the first deed, after it was executed, out of the room, and in a short time brought it back; it was then torn up and put in the *store,*and another deed was then executed; the second deed was executed to Frederick Diener, jr.; the reason why I know so, is that Bade, when he came back with the first deed, said it was not satisfactory, and Diener wanted a new deed executed to his son, the defendant; the old man was not present at this conversation about executing the second deed; I did not understand anything the old man said; he did not speak a word of English.”

John Martin testified substantially like his wife.

The testimony taken in the case was here read to the jury.

Complainant offered in evidence the letter of Bade to Barnes &' Lyon, marked exhibit G, which was ruled out; to which complainant excepted.

*[Venue, éc.]*“I hereby certify that the foregoing is a true copy of my minutes of the testimony, and my rulings thereon, as kept by me on the trial of the feigned issue, in the case of *Frederick Diener vs. Frederick Diener, jr., et al.,*in the Circuit Court for Walworth county, at the last May term of said court.

“ J. M. Keep, *Circuit Judge.*

On the 28th day of May, 1856, a final decree was signed and entered in the cause in the following words:

*[Title of the*cause.— *Venue of term.]*This cause came on to be heard at this term, and was argued by counsel, and the said complainant having substantiated his title to the lands described in the original and supplemental bills of the said complainant, filed in this cause, and hereinafter described ; and it appearing *517that the possession of, and the legal title to said lands was, at the commencement of this suit, and ever since has been, in the said complainant, and that the said defendants have set up a claim thereto ; thereupon, upon consideration thereof, it was ordered, adjudged and decreed, and this court, by virtue of the power therein vested, doth hereby order, adjudge and decree, that the said defendants, and each of them, release to the said complainant all claim to an undivided one-half of all those certain pieces or parcels of land, lying and being situated in the county of Walworth and state of Wisconsin, known and described as follows: The southwest quarter of section No. twenty-four (24), in township No. three (3), north of range No. eighteen (18) east, containing one hundred and sixty acres of land, be the same more or less; also that part of the northwest quarter of said section No. twenty-four (24), bounded as follows, to wit: Commencing at the quarter-section post, between sections No. twenty-three and twenty-four (23 and 24), running thence north sixteen chains and twenty-four links (16 chains 24 links), thence east across the northwest quarter of said section No. twenty-four (24), thence south sixteen (16) chains and twenty-four (24) links, to the centre of said section No. twenty-four (24), and thence west to the place of beginning, containing sixty-four and 96-100 acres of land, more or less. And it is further ordered, adjudged and decreed, that the said defendants pay to the said complainant his costs of this suit to be taxed, and that the said complainant have execution therefor.

By the court. *Dated May*28, 1856.

July 19, 1855, the defendant Charles Schley, fled his bond for the costs on appeal in the penalty of two hundred dollars, pursuant to order of the court, and gave the clerk notice of .his appeal from the said final decree to the Supreme Court.

Novemb.r 21, 1856, the parties, by their counsel, signed the following stipulation:

*[Title of the. causei\*A motion having been made by the counsel for the defendants in this cause, before the decree was signed therein, for an order setting aside the verdict of the jury upon *518the feigned issue in the cause, and granting a -new trial thereon, and it'appearing that no order has ever been made or entered deciding said motion, so far as appears by the record of.said cause, it is therefore stipulated and agreed that an order determining said motion may be signed by the judge and entered in said cause, all and every objection or objections to the time and manner of entering the same being hereby waived. (Signed.)

' Thereupon the following order was made by the court, and entered November 29, 1856: •

*[Title of the*cause.J “ At a term of said court, held at the court-house, in said county, May 28, 1856, present, Hon. J.' M. Keep, Judge : On reading the motion of defendants for an order setting aside the verdict of the jury, and granting a new trial upon the feigned issue in this cause, and on examining the case, upon which said motion was founded, and hearing the parties, by their respective counsel, it is ordered that said motion be, and the same is hereby overruled and denied.

“ And it is further ordered that the amount of bail upon appeal from this order be, and the same is hereby fixed at two hundred dollars.

“ By the court.”

Erom this order the defendants appealed.

*Lyon & Barnes,*for the complainant and appellee,

contended that the verdict of the jury upon the issue submitted to them is conclusive as to the fact found by them, unless a new trial1 be ordered. *Griffith vs. Griffith,*9 *Paige,*315.

The only cases in which a court has made a final decree against the party in whose favor the issue has been found, are those where the issue does not answer the purpose for which it was intended; that is, where the issue does not present the' real questions involved in the case. *Armstrong vs. Armstrong, 8 My. & Keen,*45. Therefore, the final decree in this case being in accordance with the verdict, must stand, unless -a new trial be ordered, because the issue does present the real question involved, and the verdict is responsive to the issue.

*519A new trial was properly denied.

1st. Because tbe court did not misdirect tbe jury on tbe trial of said issue. It is to be borne in mind, tbat tbe charge of tbe court was given *with reference to this particular*case, and was not intended as a statement of abstract principles of law; or, in other words, tbe court simply stated to tbe jury tbe principles which would govern him, and tbe considerations which would influence bis mind, were be deciding tbe case without tbe intervention of a jury. *Apthorp vs. Comstock,*2 *Paige Ch. P.*482.

Tbe appellee having purchased th?, farm, and paid tbe consideration tberefor, tbe deed thereof being delivered to him, and be immediately taking possession of tbe farm; and tbe grantor, Mr. Martin, being at tbe time entirely indifferent, as to whom be conveyed the farm, it' certainly was entirely immaterial, whether 'Martin thought be was conveying to the father or son.

Tbe above proposition being correct, it follows, that it was only material to “ inquire as to the intention of tbe party making the purchase, and paying tbe consideration.”

Those portions of tbe charge referred to in tbe 3d and 4th exceptions, are correct as abstract principles of law, and *a fortiori*are correct as applied to this case. 1st *Phillipps on Evidence,*385-6.

Tbe statement made by Bade to Martin and wife, was made in tbe absence of complainant, and does not purport to be an interpretation of what complainant said.

Tbe portion of tbe charge embraced in tbe 5th exception must be considered with reference to tbe fact, that father and son were of tbe same name, and the deed contained nothing to designate which of tbe two was intended to be named therein ; and surely, upon every principle of justice and equity, if complainant, who purchased and paid for tbe farm, believed and intended tbat tbe “ Frederick Diener,” named in tbe deed, was himself, tbe issue ought to have been found in his favor ; and this, notwithstanding, tbe grantor might have been led to believe, tbat tbe son, and not the father, was intended.

*520*J. Stark*and *O. K.*Watkins, for tbe appellant,

made tbe following points:

L Tbe motion for new trial of a feigned issue is properly addressed to the equity side of tbe court, and the order of tbe court denying such motion is a proper subject of appeal. 1 *Bari. Gh. Pr.*455; 2 *Sim. B.*319 ; 2 *Dan. Gh. Pr.*756.

2. This appeal brought “ within fifteen days from tbe time of entering ” tbe order appealed from.

All objections to tbe time of entering tbe order were waived by stipulation.

3. Tbe court below should have set aside tbe verdict of tbe jury, and granted a new trial of tbe feigned issue, for tbe following among other reasons :

1st. For tbe error of tbe court in instructing tbe jury, that upon tbe issue, tbe intention of tbe grantors, as to tbe person named as grantee in the deed, was not material to their inquiry, and that they should only inquire as to tbe intention of tbe party making tbe purchase, and paying tbe consideration.

Tbe intention of tbe grantors is tbe necessary subject of inquiry upon such an issue as this. There are two persons bearing tbe name of tbe grantee in tbe deed. It is to be determined which of tbe two was *intended*as grantee. Whose intention is material ? that of tbe grantor, whose deed it is, or of tbe pretended grantee, whose right is in dispute ?

Tbe cases which allow tbe right to introduce extrinsic evidence, in cases of latent ambiguity, say it is to explain tbe *intent of the party ;*what party is meant, unless it be tbe party executing tbe deed, speaking through it ?

Latent ambiguity in tbe description of property, is explained in no other way. Tbe sole inquiry is, what did tbe grantor intend by *his deed ?*

In construing all grants and devises, tbe rule is uniform to ascertain from tbe terms employed, what the grantor or devisor intended by tbe instrument. By what principle is tbe inquiry changed when it is found that tbe instrument is ambiguous ? Is it less important to know what the maker intended, because bis intention is not apparent from tbe terms of bis deed ?

*521Tbe grantee, by refusing to accept a deed, can defeat its operation ; bnt if be accepts it, be accepts it *as made by the*grantor, and courts must construe tbe deed as expressing tbe intention of tbe grantor. It is *his*written indenture, *his*act; be fixes all its terms, names bis grantee, describes tbe property, subject of tbe deed, bis will is expressed in it, and cannot be defeated by bis grantee after acceptance of tbe deed.

As to tbe various questions upon tbis point, see 2 *Cow. and Hill’s Notes, pp.*539 *and*540, *and cased there cited; Ooit vs. Starkweather*(8 *Gonn. 11.*289); *Jones vs. Newman*(1 *Black/.*60); *Jackson vs. Schultze*(13 Johnson, 518); *Wigram on JSxtr. Hvi.*118.

2d. For error in excluding from tbe jury tbe declaration of Bade, in presence of Martin and wife, as to reasons for destroying tbe first deed and executing another to tbe sons.

Tbis error arises, from tbe assumption that the intent of tbe complainant was alone material to tbe issue, and that tbis testimony was offered to show *his*intent.

Tbe evidence is, however, material and proper, as showing tbe intent of tbe grantors, which is to be gathered from their own statements, strengthened by circumstances attending tbe execution of tbe deed.

It is admitted, or at least shown without contradiction, that Bade and George acted as interpreters and agents for tbe complainant — spoke for him and represented him in the conversations and negotiations at and about tbe time of tbe execution of tbe deed. The grantor, Martin, could not converse with tbe complainant without tbe interpreter. Whatever these interpreters, therefore, said, relating to tbe subject of tbe negotiations pending, for and in behalf of the complainant, be would clearly be bound by, at least after tbe grantor bad acted upon their statements; were tbis not so, there would be no safety in the dealings between persons speaking different languages.

Tbe testimony was also material and proper, as showing that tbe complainant requested tbe grantor to execute tbe deed to tbe defendant, thus rebutting any presumption that might be claimed in favor of tbe complainant from payment of tbe purchase money or otherwise.

*522■•3d. The judge, in his charge, stated in defendant’s fifth exception, has entirely misconceived-the nature of the issue to be tried by the jury. The simple question for the jury to determine was, “whether the legal title in the.lands, &c.,” “was, on the 14th day of September, A. D. 1852, in the said complainant and the said Carl Diener, and was then had and held by them.” This excludes from the jury any considerations of fraud on the part of the interpreter-or Frederick, jr., or any other person.

There is to be tried the simple question of fact: — was the grantee, Frederick, sr., or Frederick, jr. ? and that fact will remain the same, whether brought about by fraud or not. If Frederick Diener, jr., bribed the interpreter, and the old man was deceived and imposed upon, and the result of this was, that the deed was in fact executed to Frederick, jr., and not to Frederick, sr., it follows most clearly that Frederick, jr., held the legal title. Had the son borne any other name, would the judge have made this charge? *Yet*his language is equally applicable to such a -case. He instructs the jury, in other words, that if they find that the deed was in fact executed to Frederick, jr., and Carl, his brother, by the grantor, yet if they believe Frederick, jr., and the interpreter procured this to be done by deceiving and imposing on the old man, and he believed and supposed it was executed to him, then the jury- (having found that the deed was in fact executed to Frederick, jr.) shall declare that the legal title is in the old man. Or, briefly, if they find that the deed was executed to Frederick, jr., they may still find the legal title to be in Frederick Diener, sr.

Legal title without a conveyance! The similarity of names can make no difference.

Had the conveyance been made to Thomas Diener under like circumstances, under the charge, the legal title might still have passed to and vested in the father. How ? Is the deed void for fraud ? If void, their no title has passed from Martin. But Martin does not complain of fraud; the deed is good as to him; his title has passed. To whom ? To his *grantee named*in his deed of convej'ance, or to some one -not named, who paid the consideration and *supposed*the deed was made to himself?

*523Courts of chancery will interpose to prevent fraud, and to relieve from its consequences, on complaint of the party affected hy it, but fraud must be alleged, must be charged'as the ground of relief, and must then be proved, or courts will not interfere with the legal title.

The complainant in this cause has, however, not pretended that there was fraud. He rests his whole claim for relief upon his own legal title, as the grantee of John Martin, named in his deed, and refers to the claim of the defendant Frederick, jr., as false and unfounded in fact. To sustain-the bill, therefore, complainant must prove that the deed was, in fact, executed to himself and not to Frederick, jr. The feigned issue is no broader. If the jury then found that the deed was executed to Frederick, sr., it was their duty to find for the complainant. If they were satisfied it was executed to Frederick, jr., they should have found a verdict for the defendants on the issue, regardless of questions of fraud, which were improperly submitted to them; and the instruction of the judge that they might find for the complainant, though they believed the deed was executed to Frederick, jr., is most obviously erroneous.

Fraud does not change the facts. Had Frederick, sr., given his son the money, and instructed him to purchase the farm for him (Frederick, sr.), and the son ■ had purchased the farm with his father’s money, and taken the deed in his own name, the fraud upon the father would be quite as great as supposed by the judge; yet the father would not think of applying to this court to decree that the legal title was in himself. His complaint would be that his son had taken title to himself in fraud of the father’s rights, and his prayer for relief would ask that the son’s title might be decreed to be held in trust-for the father, and that the son might be decreed to convey to the father, &c. In order to obtain relief on the gronnd of fraud, a party must admit the fact in respect of which the fraud was committed, otherwise there is no fraud, no ground of complaint.

In this cause fraud plays no part ;■ it is not alleged, and the allegations upon which the relief of the court is asked, preclude the possibility of its existence.

*524If complainant had stated in his bill, in the language of the judge in his charge, “that Frederick Diener, jr., and the interpreter deceived and imposed upon ” him, “ and procured the deed to be executed to Frederick Diener, jr., and Carl Diener, his brother, by the grantor, while ” he, the complainant, “ who made the negotiations for the land, and paid the purchase money, supposed and believed it was executed to himself,” he might have presented a case for relief on account of fraud. But he has presented no such issue, and all the testimony bearing upon it was irrelevant, as the charge was erroneous.

Whether there was fraud or not on the part of Frederick, jr., and the interpreter, or either of them, was wholly immaterial, and the court should have so instructed the jury. •

It must not be forgotten that sec. 7, chap. 57, of the Revised Statutes, declares that where a grant for a valuable consideration is made to one person, and the consideration is paid by another, no use or trust shall result in favor of the person who paid the consideration, but *the title shall vest*in the person *named as the alienee in such conveyance.*

The verdict, under the instructions of the court, was based upon a question of fraud not put in issue by the pleadings. A decree founded ujjon the verdict would therefore violate the principle, that *“*a decree must be sustained by the *allegations of the parties,*as well as by the proofs in the cause, and *cannot he founded on a fact not put in issue by the pleadinqsf Garneal vs. Banks,*10 *Wheaton,*181

*By the Court,*

Whitoet, O. J.

The bill in this case was ined for the purpose of compelling Frederick Diener, jr., one of the defendants, to execute a release to the complainant of certain lands described in the bill.

The bill charges that the complainant purchased a quantity of land of one John Martin, and took a conveyance of the same to himself and his son Carl Diener jointly; that his other son, Frederick Diener, jr., sets up a claim to one-half of the land, *525claiming to be one of tbe grantees named in tbe conveyance of tbe land from Martin. Tbe bill prays that -Frederick, jr., may be decreed to release to tbe complainant all bis right to tbe land, and for general relief.

Tbe answer of Frederick, jr., claims that tbe purchase of *the*land was made by Frederick, sr., for bis sons Carl and Frederick, jr., and that they are tbe grantees named in tbe deed. Tbe answers of tbe other defendants need not be noticed.

It will be seen that tbe principal question is, whether tbe real grantee named in tbe deed from Martin, with Carl, was Frederick tbe father or tbe son. To determine this question a feigned issue was awarded, and-a jury called, who, after bearing *the*testimony, found that tbe title was in Frederick, sr., tbe complainant.

A motion was made to set aside tbe verdict of tbe jury, and to grant a new trial of tbe feigned issue, which was denied by tbe court. From tbe order denying this motion, this appeal is taken.

Tbe principal matters relied upon by tbe appellant to reverse this order are, tbe alleged errors of tbe judge before whom tbe issue was tried, in permitting improper testimony, and in tbe instructions which be gave to tbe jury. It appears that Charles Diener was allowed to testify to tbe fact that he bad seen a letter from tbe defendant Frederick Diener, jr., written to bis mother in Germany, and was allowed to state its contents, against tbe objections of tbe defendants.

We think this testimony ought not to have been received. Tbe letter itself should have been produced, or proof of its loss given, before testimony to prove its contents could be received. Tbe well established principle that tbe party who seeks to establish a fact, must do so by tbe best evidence which tbe nature of tbe case admits of, prevents tbe reception of secondary evidence of this nature.

It appears that tbe judge instructed tbe jury that tbe intention of tbe grantors, as to whether Frederick Diener, tbe elder, or Frederick Diener, the younger, was tbe person named or intended to be named in tbe deed, was not material to tbe inquiry, *526but that the jury should only inquire as to the intention of-the party making the purchase and paying the consideration. We thinlc this instruction is wrong,-and calculated to mislead the jury.

It is true, that when the grantor receives the consideration for the land which he conveys, he is usually indifferent who the grantee is, and is controlled upon that subject by the will of the person with whom he negotiates the sale, and from whom he receives the purchase money. But this may not always be the case. A grantor may refuse to convey the land to A., and at the same time be very willing to convey it to B. In such a case the will of the grantor would be a very material subject of inquiry. In this case the deed is so drawn, that it is sufficient to pass the title to either the father or the son, and did pass the title to the one who was intended bjr the parties. If the grantor was entirely indifferent on the subject, and manifested a willingness to convey the land to the person who should be named by Diener the elder, then the will of the latter ought to control ; and if he intended that the title should pass to himself, we think it did so pass. But the jury should not have been instructed that the intention of the grantor was not a proper subject of inquiry, unless they were of opinion, from the testimony, that he was willing to be controlled by the will of Diener the elder, who paid the purchase money. We do not feel called upon to decide whose intention should control in case of a mutual mistake between the grantor and the person who pays for the land conveyed. If the grantor intended to convey to one, and the person who paid the money intended that the conveyance should go to another, while, as in this case, the deed should be so drawn as to be adequate to convey the title to -either, it may be a matter of doubt to whom the title would.really go; and as this question does not necessarily arise,-we .shall express no opinion upon it. ,.

- It was contended at the argument that the testimony showed the grantor to be entirely willing, to convey.the land to whomsoever Diener, the elder, should name,- and that -the instructions of the judge were predicated upon the state of facts established *527by the testimony. We do not intend to express an opinion upon the testimony. As there must he a new trial, it would he improper to do so, as the expression might tend to mislead the jury-

It appears that the judge charged the jury, that an interpreter was not necessarity an agent of the parties, so that what he said might he given in evidence, if the party sought to he charged hy his declarations had no knowledge, of the language in which they were made, unless accompanied by proof, that the interpreter correctly interpreted the language of the party.

The above is the substance of the charge of the judge upon the subject, and we think it is correct. There is no doubt that the circumstances may be such as to make the interpreter an agent, so as to bind the parties; but we think he is not *necessarily*an agent. The *mere fact*that a person contracts with another, whose language he does not understand, by means of an interpreter, does not constitute the latter an agent, so as to bind him by a false translation of the language of the' parties. It would be most dangerous to hold such to be the law, as such a doctrine would hold out great inducements to persons to commit the grossest fraud upon the unwary and unsuspecting.

We see no other errors in the charge of the judge, to the jury in this case, but on account of those above alluded to, and for the reason that parol evidence was allowed to be given of the contents of the letter of Erederick, jr., one of the defendants, the order appealed from must be reversed.

Order reversed, with costs.