land, for a consideration, mentioned in said deed, of $6,000. In this cause of action the plaintiff alleges that the said deed contained the following covenants: "(1) That the defendant was lawfully seised of said block 23, and every portion thereof; (2) that the defendant has good right to convey said block, and every part thereof; (3) the defendant guaranties the grantee, [the plaintiff.] his heirs and assigns, the quiet possession of said block, and every portion thereof; (4) that the said deed contained a covenant by the grantor, his heirs and personal representatives, that said block 23 was free and clear from all incumbrances, and that the grantor, his heirs and personal representatives, will forever warrant and defend the title and possession thereof in the grantee, his heirs and assigns, against all claims whatever." The complaint alleges in proper form breaches of all the covenants in said deed. In the first cause of action it is also stated that, in payment of a part of the $6,000, the purchase price mentioned in said deed, the plaintiff gave his promissory notes for the sum of $2,500, and, as security for the payment of said sum, he executed a mortgage to the defendant upon said block 23. The complaint also alleges that the plaintiff has never been in possession of said block 23, or any part thereof; that he has not conveyed the saine, or any part thereof, by deed or otherwise, nor in any way incumbered the same, except by the mortgage to secure the payment of said $2,500,❘ part of the purchase money; and that before bringing this action plaintiff tendered to the defendant a deed reconveying said block 23 to the defendant, and demanded from him the surrender of his notes for said $2,500, and the payment to him of the sum of $3,500, with the lawful interest thereon, that being the sum paid by the plaintiff to the defendant as a part of the purchase price for said block. The second cause of action alleges that the defendant was guilty of fraudulent representations in making the contract of sale of said block to the plaintiff, and asks relief on that ground. In the view we have taken of the case on this appeal, it is unnecessary to set up the facts alleged in this second cause of action. The defendant, in his answer, alleges, among other things," that at the time of said bargain and sale, and for more than ten years prior thereto, the defendant was the owner in fee, and entitled to the possession, of all the land contained in sald block 23, and all the riparian rights and shore privileges connected therewith, and duly conveyed the same, and all thereof, to the plaintiff, by said warranty deed of April 2, 1887, as aforesaid, and by the delivery of said deed duly delivered to the said plaintiff the possession, and all the rights of possession, and seisin in, to, and of said block 23, and all thereof, as aforesaid." On the trial in the court below, the circuit judge made the following findings of fact and conclusions of law, viz.: (1) That on the 2d day of April, 1887, at Ashland, Wis., the defendant sold to the plaintiff, for the sum of six thousand dolfars, ($6,000,) all of block twenty-three (23) of Ellis' division of Ashland, accord ing to the recorded plat thereof in the county of Ashland, state of Wisconsin, and duly executed, signed, sealed, and acknowledged, and delivered to the plaintiff as grantee therein, a warranty deed, in statutory form, of all of the above-described premises; (2) that said Frederick Prentice was, on the 2d day of April, 1887, the owner in fee of said premises, subject to a mortgage of Edwin Ellis for a portion of the purchase price thereof; (3) that prior to the commencement of this action the said defendant paid to said Ellis the full amount due on account of said mortgage, and then and there became the owner in fee-simple of the premises, free and clear of all liens and incumbrances; (4) that at the time of the sale of said premises by the defendant to the plaintiff, the said defendant made no false and fraudulent representations in regard to the title to said premises, or to the quantity of land contained therein; (5) that there has been no breach of covenants contained in the defendant's said deed to the plaintiff; and as a conclusion of law the court finds that the defendant is entitled to a judgment of no cause of action, and of a dismissal of the complaint, together with the costs herein, and the clerk is hereby directed to enter judgment accordingly. To the second, third, fourth, and fifth findings of fact the plaintiff duly excepted. He also excepted to the conclusion of law. As stated above, we shall not consider upon this appeal whether the defendant made any false representations in regard to the title or quantity of land contained in said block 23. After reading all the evidence contained in the record, it seems to us very clear that the learned judge erred in finding that the defendant, at the time he made the conveyance of block 23 to the plaintiff, was the owner of said block in fee; and, second, in fiding that there was no breach of the covenants contained in defendant's deed to the plaintiff. On the trial of the action there was no evidence introduced on the part of either party showing, or tending to show, that on the 2d day of April, 1887, the defendant had any title, in fee or otherwise, to any part of said block 23. The evidence, on the other hand, shows that the defendant was not in the actual possession of said block, or any part thereof, either before or at the time of the execution and delivery of said deed; that he did not deliver the actual possession thereof to the plaintiff; and that the plaintiff never took possession of said block, or any part thereof, under his said deed. The evidence also shows that, as to that part of said block which was not covered by the waters of the lake, the Wisconsin Cenral Railroad Company had the actual pos session of nearly the whole thereof. The mistake made by the learned circuit judge upon the trial was in holding that in this action for a rescission of the contract of sale for a breach of the covenants of this deed the burden of proof was upon the plaintiff to show that the defendant had no title in fact, and that, in the absence of any proof on the subject, the presumption was that the defendant had title. Under the complaint, the plaintiff had the right to recover upon a breach of the covenant | taken under such deed, can recover only of seisin, and on the covenant of a right to convey upon proof of the execution and delivery of the deed and payment of the purchase money, and that the actual possession of the property had never been taken by the plaintiff under his deed. The rule as to the burden of proof in such case was established by this court in Mecklem v. Blake, 16 Wis. 102, and was followed in Beckmann v. Henn, 17 Wis. 412, and Noonan v. Ilsley, 21 Wis. 144. This rule has never been questioned in this court, and it was referred to with approval in Ayres v. Railway Co., 71 Wis. 387, 37 N. W. Rep. 432. It is unnecessary to quote other authorities in support of the rule. The defendant having admitted the making of the deed, and the deed being in evidence showing the covenants, and the evidence in this case showing affirmatively that no possession of the granted premises was ever given by the grantor to the grantee, and that no possession had ever been in fact taken by such grantee under his deed, the burden of showing that the grantor was seised of an estate in fee at the time of the making and delivery of the deed was upon the grantor. What evidence there was produced on the part of the plaintiff shows prima facie that the legal title to two of the lots was not in the defendant at the time of the execution and delivery of the deed. There was no evidence given as to who held the title to lots 2, 3, 4, and 5. In this state of the evidence, the plaintiff was clearly entitled to have the contract of sale rescinded for the breach of the covenant of seisin, etc. The question as to what amount the plaintiff is entitled to recover upon the breach of the covenant of seisin, when the grantee was not put in the actual possession of the property conveyed, and when he has never in fact taken such possession under his deed, has also been settled by this court in Nichol v. Alexander, 28 Wis. 118, and McInnis v. Lyman, 62 Wis. 191, 22 N. W. Rep. 405. In the last case Justice LYON says: "In Nichol v. Alexander, 28 Wis. 118, it was held that if a grantor, by full covenant deed of warranty, assumes to convey unoccupied lands to which he has no title, there is at once a constructive eviction of the grantee which entitles him to the same remedies that he would be entitled to had he been turned out of the actual possession of the land by legal process. It was also there held that if, in such a case, the grantor subsequently obtains a good title to the land, while he would be estopped to deny the title of his grantee, yet he cannot compel the latter, after his eviction by title paramount, to accept such after-acquired title in satisfaction of the covenants in his deed, or in mitigation of damages for a breach thereof. As to constructive eviction, see Rawle, Cov. (2d Ed.) 268, and cases cited in note." There is nothing in the language of the court in the case cited in conflict with the decision of this court in the case of Mecklem v. Blake, 22 Wis. 495. In that case it was held by this court that a grantee in the undisturbed actual possession of the property conveyed to him by a warranty deed from his grantor, and when such actual possession is v.45N.w.no.10-60 nominal damages for a breach of the covenant of seisin. In that case the learned Chief Justice DIXON says: "This doctrine is furthermore supported by the decisions of this and other courts, that where a deed is made and accepted, and possession taken under it, want of title will not enable the purchaser to resist the payment of the purchase money, while he retains the deed and possession, and has been subjected to no inconvenience or expense on account of the defect of title;" citing Taft v. Kessel, 16 Wis. 273; Horton v. Arnold, 18 Wis. 212; Ludlow v. Gilman, Id. 552; Hall v. Gale, 14 Wis. 54. He further says: "Nothing could be more inconsistent than to hold that the purchaser in possession cannot resist an action to compel payment of the purchase money, and yet that he may turn around and immediately recover it back by a suit upon the covenant of seisin." The learned chief justice also says in his opinion: "If he [the grantee] desired to rescind for want of title, and to recover back the purchase money paid and interest, he should have tendered Blake a reconveyance and the possession, and then he could have maintained his action. Taft v. Kessel, supra." This is what the plaintiff in the case at bar did before commencing his action, as will be seen from the statement above made as to the facts set out in his complaint. Whether he was under any obligation to make such tender of a reconveyance before commencing his action, in a case like the one at bar, when there never had been any possession delivered by the grantor or taken by the grantee under his deed, in order to entitle himself to recover the purchase price, is a question which need not be determined in this case. The tender of the deed reconveying the property is admitted by the defendant in his answer. Upon the evidence in the case, the plaintiff is entitled to a rescission of the contract of sale, and to recover the purchase price, with interest from the date of the deed, unless the defendant shall deliver up and cancel the note and mortgage of the plaintiff for the $2,500; and, in case of such delivery and cancellation, the plaintiff will be entitled to judgment for the sum of $3,500, with interest from the date of said deed. The judgment of the circuit court is reversed, and the cause is remanded, with directions to the circuit court to enter judgment in accordance with this opinion; but the circuit court may, in its discretion, on the application of the defendant for cause shown, and upon such terms as shall be just, grant a new trial upon all the issues in the case. (77 Wis. 4) HORSCH V. DWELLING-HOUSE INS. Co. (Supreme Court of Wisconsin. May 20, 1890.) FIRE INSURANCE-INSURABLE INTEREST. Plaintiff purchased a farm, with the buildings, paying for the same with his own money, and at his direction the deed was made to his wife,.upon her agreement to reconvey to him at his request. Plaintiff had possession, and the entire beneficial use, of the farm and buildings, using the same for the support of his family. Held, that he had an insurable interest in the buildings. Appeal from circuit court, Brown county. | Hudd & Wigman, for respondent. Vroman & Sale, for appellant. TAYLOR, J. This is an action to recover damages upon a fire insurance policy. The policy insured the plaintiff against loss by fire upon a dwelling-house, several barns, household furniture, wearing apparel, farming implements, grain, and hay. The policy was issued June 4, 1888, and a fire occurred August 30, 1888, destroying most of the property insured. On the trial in the cir cult court the plaintiff recovered $140 for the loss of personal property insured, and $725 for the loss on the insured buildings. The defendant only appeals from that part of the judgment which gave the plaintiff $725 for loss on the insured buildings. The only ground stated by the appellant for reversing the judgment as to the part appealed from is that it claims the plaintiff had no insurable interest in the buildings destroyed, either at the time the policy was issued, or at the time of the loss. The evidence on the trial shows that, some years before the policy of insurance was issued to the plaintiff, he bought the land on which the insured buildings were located from one Charles Rogers, and paid for it with his own money, and by his direction Rogers conveyed the land to his wife. The house was on the land at thetime he purchased it. Plaintiff built the barns himself, made all the other improvements on the farm at his own expense, took actual possession thereof with his family, and cultivated the land at his own expense and on his own account, and had the entire and sole management of the farm. The proceeds of the farm were used to support the family. This was done with the consent of the wife. There was an understanding between the plaintiff and his wife that she would deed the farm to him at his request. All the stock, farm implements, household furniture, and other personal property on the farm were the property of the plaintiff. This was the situation of affairs when the policy was issued, and when the fire occurred. It was also proved that at the time the policy was issued, and delivered to the plaintiff, the agent who issued the same was informed that the title to the land was in the wife. Upon this state of facts, we think it is very clear that the plaintiff had an insurable interest in the house and barns at the time the policy was issued, as well as at the time of the fire. The actual possession and beneficial use of the farm were in the plaintiff, with the full consent of the wife, at the time the policy was issued as well as at the time of the loss. There can be no doubt, therefore, but that the plaintiff had a pecuniary and valuable interest in the property insured and destroyed, and therefore an insurable interest. The possession and use of the house and barns was of the utmost importance to him in providing a support for himself and family, and their destruction was substantially as disastrous to him in his endeavors to support himself and family as though he had the actual title. He had in fact the possession and the entire beneficial use, of which he was deprived by their destruction. The actual possession and use of property is a valuable right, and it is especially valuable when held with the permission of the real owner. It has even been held that a disseisor who is in peaceable possession after having ousted the real owner, has an insurable interest without regard to the question of actual ownership, especially when the disseisor has acted in good faith, believing he had the right to such possession. See cases hereafter cited. It seems very clear to us that a person in the actual possession and use of real property for his personal benefit, with the assent of the real owner, stands in a much better position, and has a pecuniary interest much more valuable, than a mere disseisor in possession holding adversely to the real owner. What constitutes an insurable interest, so as to take the case out of the law prohibiting wager policies, is not very clearly defined, and it is difficult to lay down any general rule applicable to all cases. Flanders, in his work on Insurance, says: "But an 'insurable interest' does not rigorously mean that the assured must have an absolute right of property in the thing insured. If he has a special, limited interest, or if he would suffer any disadvantage by the destruction of the premises, or any reasonable expectation of profit would be thereby defeated, he may protect or indemnify himself by insurance. In a word, if the party insured has any interest that would be injured in the event that the peril insured against should happen, the courts will maintain his policy." Fland. Ins. 377. Wood, in his work on Insurance, says: "It is not necessary that the assured should have either a legal or equitable interest, or indeed any property interest, in the subject-matter insured. It is enough if he holds such a relation to the property that its destruction by the peril insured against involves pecuniary loss to him, or those for whom he acts." 1 Wood, Ins. § 281, p. 645. May, in his work on Insurance,. says: "An insurable interest is sui generis, and peculiar in its texture and operation. It sometimes exists when there is not any present property. Yet such a con nection must be established between the subject-matter insured, and the party in whose behalf the insurance has been effect ed, as may be sufficient for the purpose of deducing the existence of a loss to him from the occurrence of an injury to it." Again he says: "When a man is so circumstanced with respect to matters exposed to risks or dangers as to have a moral certainty of advantage or benefit but for those risks or dangers, he may be said to be interested in the safety of the thing. Parts of sections 76, 77. These statements of what is an insurable interest have been considered, discussed, and approved in such an almost endless number of cases that we shall content ourselves with citing a few of them, which were cases based upon facts analogous to the facts in the case at bar: Redfield v. Insurance Co., 56 N. Y. 354; Trust Co. v. Insurance Co., 51 Barb. 33; Strong v. Insurance Co., 10 Pick. 40; Putnam v. Insurance Co., 5 Metc. 386; Insurance Co. v. Brown, 43 N. Y. 389; Railroad Co. v. Relief Fire Ins. Co., 98 Mass. 420; Insurance Co. v. Barracliff, 45 N. J. Law, 543; Harris v. Insurance Co., 50 Pa. St. 341; Merrett v. Insurance Co., 42 Iowa, 11; Insurance Co. v. McLanathan, 11 Kan. 533; Goulstone v. Insurance Co., 1 Fost. & F. 276; Williams v. Insurance Co., 107 Mass. 377-379; Cohn v. Insurance Co., 3 Hughes, (U.S.) 272; Rohrbach v. Insurance Co., 62 N. Y. 54; Travis v. Insurance Co., 32 Mo. App. 198-206; Amsinck v. Insurance Co., 129 Mass. 185, 186. cases above cited are quite sufficient to show that the objection taken by the learned counsel for the appellant, that the evidence in the case at bar does not show that the plaintiff had an insurable interest in the house and barns, is wholly unsupported by principle or authority. The Whether the insurance might be held valid on the ground that the insurer had full knowledge of the state of the title when the policy was issued, and he must therefore be held to have intended to insure the property in the name of the plaintiff for the benefit of the real owner, and that plaintiff may be considered as having insured as the agent of his wife, and for her benefit, as well as for his own, need not be decided in this case. Upon this point, see Harris v. Insurance Co., and Insurance Co. v. McLanathan, supra. The judgment of the circuit court was clearly right. That part of the judgment appealed from is affirmed. (77 Wis. 9) BLAZINSKI V. PERKINS. (Supreme Court of Wisconsin. May 20, 1890.) CONTRIBUTORY NEGLIGENCE-EVIDENCE-INSTRUC TIONS. 1. In an action to recover for personal injuries received by the falling of a scaffold, it appeared that plaintiff stood by and saw it built, and, when the carpenters were about to put in a brace, he told them not to do so, that it would be all right without it, and if they put it in he would take it out. The defendant requested the court to charge the jury that a mere suggestion by the plaintiff that he though the brace was not needed, would not excuse the defendant from putting it in, if it was necessary. Held not applicable to the case, and properly refused. 2. The persons working on the scaffold with plaintiff were another mason, a carrier of brick, and a carrier of mortar, all engaged in the same work, and employed by the same person. The scaffold was overloaded with brick, and the court charged that, if any of those working on the scaffold with plaintiff negligently overloaded it with brick, which caused it to fall, the plaintiff could not recover. Held, that there was no error. 3. It was not error to allow the jury to take to their room a model used by the witnesses in illustrating the construction of the scaffold, although it was not formally introduced in evidence. 4. The fact that an interpreter was used in a conversation between the witness and plaintiff does not make evidence of the conversation by the witness objectionable as hearsay. Appeal from circuit court, Marinette county. Hudd & Wigman, for appellant. Fairchild & Fairchild, for respondent. ORTON, J. The defendant was building a brick block, and employed the plaintiff and other brick-masons to lay the brick, and certain carpenters to do the wood work. It became necessary to build a scaffold on which the plaintiff and another mason could stand to lay brick, and two of the carpenters, under a foreman, built the scaffold in some haste, as the masons were waiting for it. The plaintiff stood by and saw the work on the scaffold done, or, at least, the finishing part of it. There was testimony that the carpenters had prepared a brace to be placed in the middle of it, and which they thought was necessary to make the scaffold safe, and were about to put it in, when the plaintiff told them not to do so, as it would be in his way, and if they put it in he should have to take it out, and that the scaffold was all right without it. There was also testimony that a fellow-workman, the scaffold with the plaintiff, knocked off with a hammer a stay-brace at some other part of the scaffold, and that these defects caused the scaffold to fall, and that it fell soon after the said stay was removed. There was some evidence tending to show that the scaffold was overloaded with brick. After working on this platform three or four hours, it fell, and carried with it the plaintiff, his fellow-workman, and an attendant, and injured the plaintiff very seriously. The jury found a verdict for the defendant. On this appeal from the judgment the learned counsel of the appellant assigns several errors of law, which will be disposed of in their order. on 1. It seems that the foreman of the carpenters who put up the scaffold made a model of it, and such model was used by the witnesses of the defendant to illustrate to the jury how it was constructed. There was testimony that it was a correct model of the scaffold, but this was disputed by the plaintiff. It was not formally introduced in evidence, but the jury were allowed to take it to their room. This is assigned as error. The model became a necessary part of the witness' testimony, to go to the jury as such. It was not used as independent testimony of the real construction of the scaffold, but only to explain the testimony of the witnesses. This court very recently decided that an unrecorded plat of lots might be used in the same way, and might be formally introduced in evidence, and used by counsel on the argument. Meinzer v. Racine, 74 Wis. 166, 42 N. W. Rep. 230. The model so used and taken by the jury was only to show what the witness testified to, and would not corroborate the testimony in the least. It would be like a pencil drawing made by a witness on the stand, in the presence of the jury, to illusstrate or explain his oral evidence. The use of the model in this way seems to have been proper. See the authorities cited in the above case. 2. The witness Horde, the foreman, testified that when they were about to put in that brace the plaintiff said: "No use putting in that, because, if he put it in, they would take it out; no need of it; was in their way." The witness added: "My men told me he [plaintiff] said so. The plaintiff's counsel moved that the above testimony of the witness be stricken out as hearsay, and the court denied the motion. 99 (77 Wis. 131) COLE V. MITCHELL et al. (Supreme Court of Wisconsin. May 20, 1890.) ACTION ON JUDGMENT-NOTICE. shall not be brought on a judgment without leave Rev. St. Wis. § 2916, provides that an action of court, for good cause shown, on notice to the adverse party. Held, that a failure to give the full eight days' notice required for notices of motions for orders by Cir. Ct. Rule 11, § 1, and to accompany it with copies of the affidavits on which it is based, as required by Cir. Ct. Rule 11, § 2, are of jurisdiction to make the order, where it appears mere irregularities, which do not deprive the court that the notice actually served fully explained the nature of the motion. This testimony was explained as follows: | court committed any errors of law on the The witness Horde did not understand En- trial. The judgment of the circuit court is glish, and, when the plaintiff said this to affirmed. them, that is, to the witness and two other persons who were making the scaffold, he asked one of the others what he said, and he translated it to him as above, in the presence of the plaintiff. It follows, then, that the plaintiff said this to Horde through an interpreter. When so translated, the plaintiff tacitly assented to its correctness. It was no more hearsay than any evidence given through an interpreter. 3. The court instructed the jury, in effect, that if any of those working on the scaffold with the plaintiff, negligently overloaded the scaffold with brick. which caused it to fall, it would be the negligence of a fellow-employe, for which the plaintiff could not recover of the defendant. This is claimed to be erroneous, and the learned counsel of the appellant cites authorities which show that the fact that some one This appeal is from an order setting else besides the defendant contributed to aside, for want of jurisdiction, a former produce the injury would not be a defense. order permitting plaintiff to commence an But in all such cases the person who thus action on a judgment dated May 7, 1869. contributes is a stranger, not connected An action on the judgment would have with the plaintiff as a fellow-servant or been barred May 7, 1889, by the statute of co-employe, as in Atkinson v. Transporta- limitations. The notice was served May tion Co., 60 Wis. 141, 18 N. W. Rep. 764. 1, 1889, and fixed as the time for hearing The persons working on the scaffold were May 6, 1889. The notice was not accomthe plaintiff, another brick-mason, a carpanied with the affidavits which were to rier of brick, and a carrier of mortar, en- support the motion. Cir. Ct. Rule 11, § 1, gaged in the same work, and employed provides that notices of motions for orders by the same person. There can be no ques- shall be served eight days before the time tion but that they were co-employes, and, fixed for hearing. Cir. Ct. Rule 11, § 2, if the plaintiff was injured through their provides that such notices shall be accomnegligence, the defendant is not responsi-panied by copies of all records, affidavits, ble to the plaintiff for it. This has been too often decided by this court to require authorities. The court stated hypothetically the facts which would make them co-employes, and then stated the law applicable to such facts correctly. 4. The court, in instructing the jury, said: "The testimony tended to show that there were two hundred brick or upwards on the scaffold." This was not erroneous, as claimed by the counsel. There was testimony that there was from 200 to 250 brick on the scaffold when it fell, and that such a number was not necessary. Appeal from circuit court, Juneau county. and other papers upon which it is founded. Winsor &Winsor, for appellant. O. B. Wyman and Smith & Buell, for respondents. ORTON, J. The judgment in this case was rendered May 7, 1869. On May 2, 1889, notice was served on the defendants that the plaintiff would make application to the court on May 6, 1889, at 10 o'clock in the forenoon, for leave to bring an action on said judgment. On that day the defendants appeared specially for the purpose of objecting to the jurisdiction and authority of the court to grant said mo 5. The learned counsel asked the court to instruct the jury that "a mere suggestion. The court, however, sustained said tion of the plaintiff that he thought the middle brace was not needed would not excuse the defendant for not putting the same in its place, if it was necessary to make the scaffold safe." This instruction was refused, and very properly, for it was not applicable to the case made by the evidence. The plaintiff did not make a mere suggestion that it was not needed, but he told the carpenters not to put it in, and that if they did he would take it out, and that it would be in his way, etc. There are some other exceptions to the instructions, on the ground that the court misstated the evidence to the jury. The court in every instance stated only that the defendant claimed the evidence to be so, or that it tended to prove certain facts, or if they should find,-the common form of Instructions. They do not seem to be liable to the criticisms made on them. The verdict seems to be sustained by the evidence, and there does not appear that the motion, and granted such leave. The statute under which this motion was made is as follows: "No action shall be brought upon a judgment rendered in any court of this state, except a court of a justice of the peace, between the same parties, without leave of the court for a good cause shown, on notice to the adverse party." Section 2916, Rev. St. On the 9th day of July, 1889, the court, on motion of the defendants, they having appeared specially to make the same, ordered that said order granting leave of May 6, 1889, be vacated and set aside because the court had no power or authority to grant the same. This last order is the subject of this appeal. It will be seen that the order appealed from stands alone upon the want of jurisdiction of the court to grant the former order of May 6, 1889, so that the only question before this court on this appeal is, had the court jurisdiction to make said order? |