the vendor, a discharge of the mortgage by the record owner
thereof, and placing the instruments upon record, will be pro-
tected as against an assignee of the mortgage whose assign-
ment had not been recorded. The fact that, at the time of re-
ceiving such deed and discharge, the purchaser paid over to the
supposed owner of the mortgage the money which was to sat-
isfy it, does not show that he was discharging an obligation
from himself to the payee, so as to bring him within the rule
that a debtor whose debt is evidenced by a negotiable note,
though secured by a recorded mortgage, has no right to rely
on the records in paying such debt to other than the real cred-
itor, his authorized agent, or one in actual possession of the
note. City Bank v. Plank,
653
Foreclosure: Priority of liens.
2. Upon a judgment recovered by one who had attached land of the
defendant, execution was issued in the form prescribed by
subd. 1, sec. 2969, Stats. (1898), directing satisfaction out of any
real property belonging to defendant at the date of the docket-
ing of the judgment, and the sheriff sold and conveyed the in-
terest which defendant had in the attached land at said date.
The purchaser paid the full amount of the judgment, and all
parties supposed that the procedure was such as to convey the
whole interest of defendant at the date of the attachment.
Upon foreclosure of a mortgage, the lien of which was subse-
quent to the attachment and prior to the judgment, it is held
that the court properly imposed as a condition of the enforce-
ment of the mortgage the recognition and satisfaction of a prior
lien in favor of the execution purchaser for the amount paid
by him. Beyer v. Dobeas,
89
3. A judgment establishing as a mortgage a conveyance of land
which is absolute in form, and decreeing foreclosure thereof,
need not provide that the mortgagee shall convey back the prem-
ises in case of redemption, such reconveyance not being essen-
tial to the re-establishment of the mortgagor's legal title, even
of record. Phelan v. Fitzpatrick, 84 Wis. 240, distinguished.
White v. Daniell,
273
Same: Deficiency judgment.
4. In a statutory foreclosure action, if the principal cause of action
fails there can be no judgment for deficiency. City Bank v.
Plank,
653
Redemption: Conveyance by mortgagor to mortgagee.
5. In order to support a transfer of mortgaged land by the mort-
gagor to the mortgagee, terminating the right of redemption, it
must be clearly shown that the conveyance or release was volun-
tary on the part of the mortgagor, was based upon an adequate
consideration, was untainted by fraud, and that no advantage
was taken of the debtor's necessities to drive a hard bargain.
Young v. Miner,
501
6. The evidence in this case is held insufficient to show that by such
a transfer the mortgagors intended to release all equity of re-
demption, or that the transfer was voluntary on their part.
Ibid.
7. Such a transfer, by embarrassed mortgagors to the mortgagee, of
land worth from $2,000 to $3,000 for no consideration except
the mortgage debt and some trifling additions, aggregating $900,
cannot be sustained.
Ibid.
8. An estoppel as against the mortgagors making such a transfer to
the mortgagee, in favor of a third person claiming title under
such mortgagee, is not established by evidence which fails to
show that the conveyance to such person was based upon a val-
uable consideration or even that he was ignorant of the mort-
gagors' rights.
Ibid.
Adoption of parts of general charter: Repeal of parts of special char-
ter.
1. Where, pursuant to sec. 926, Stats. (1898), a city has adopted sec-
tions of the general charter law "in lieu of the provisions of its
special charter," the adopted sections do not supersede any part
of the special charter not within the same subject matter nor
dependent upon the expressly displaced provisions. Block v.
Fond du Lac,
85
2. Secs. 925-201 to 925-207 of the general charter law having,
when adopted by the city of Fond du Lac, superseded the pro-
visions of its special charter which made it the duty of lot-
owners to keep the sidewalks in repair and made them primarily
liable for injuries caused by failure to perform that duty, the
further provision imposing upon the city a secondary liability
for such defaults of lotowners was also, by necessary implica-
tion, superseded; and, the exemption of the city (under sec. 2,
subch. 18, of its charter) from liability under the general law
being dependent upon and compensatory of the liabilities above
mentioned, the abolition of those liabilities abolished that ex-
emption.
Ibid.
3. Sec. 6b, subch. 18, of the charter of Fond du Lac (sec. 4, ch. 435,
Laws of 1889), was not repealed by the adoption of secs.
925-201 to 925-207 of the general charter law, relating to the
construction and repair of sidewalks.
Ibid.
Torts: Defects or obstructions in streets: Personal injuries.
4. Evidence that a mud hole nearly two feet deep, extending across
the traveled track in a street, with an abrupt ascent at one end
of about twenty inches where it joined the hard ground, had
existed for years, and that before the accident frequent com-
plaint thereof had been made to the street commissioner, is held
to sustain a finding by the jury that the city had such notice of
this condition that in the exercise of ordinary care it could have
remedied the defect before the accident. Marlow v. Fond du
Lac,
74
5. The question of plaintiff's contributory negligence in driving into
a deep mud hole extending across the traveled track in a street
is held, upon the evidence, to have been for the jury. Ibid.
Same: Sidewalks.
6. In the absence of any special exemption from liability for injuries
caused by defective walks, and of any liability specially created,
the liability of a city in such a case is governed by sec. 1339,
Stats. (1898). Block v. Fond du Lac,
85
Same: Defects and obstructions in sewers.
7. If a municipality, without first having duly adopted a plan, con-
structs and puts in operation an unsuitable sewer system, it is
liable to a private property owner for damage caused proxi-
mately to his property by the insufficiency without contributory
negligence of such owner. Hart v. Neillsville,
3
8. If a municipality puts a sewer system in operation, having first
duly adopted plans therefor, and the same is insufficient because
of failure to exercise ordinary care in executing such plans, it is
liable for injuries proximately caused to private property, with-
out concurrence of contributory negligence of the owner thereof.
Ibid.
9. In the circumstances stated in No. 7 and No. 8 the insufficiency
being inherent in the plans or original construction, notice to
the city from the beginning of the difficulty, sufficient to charge
it with liability, is presumed.
Ibid.
10. If a municipality is free from actionable negligence, respecting
adoption of plans for its sewer system and constructing and
putting the system in operation, but the system proves not to
be reasonably suitable, and it fails reasonably to remedy the de-
ficiency within a reasonable time after having received actual,
or constructive, notice thereof, it is liable the same as in case
of want of ordinary care inhering in the installation of the sys-
tem.
Ibid.
11. If a property owner knows, actually or constructively, of a de-
ficiency in a municipal sewer system rendering it dangerous to
connect his property therewith by a drain with an open end in
his basement, yet he does so, he is guilty of contributory negli-
gence precluding him from recovering for an injury to such
property, proximately caused or aided by such circumstance.
Ibid.
12. If a person connects the basement of his dwelling house with a
main sewer in front thereof, by a drain, leaving the basement
end open, and he thereafter perceives that it is dangerous to
his property, he cannot recover damages from the municipality
for injury thus caused to such property, which ordinary care
on his part, after discovering the danger, would have prevented.
Ibid.
13. If all the conditions exist, rendering a municipality liable to a
property owner because of sewage passing from a public main
sewer to and into his dwelling-house basement by way of a
drain-pipe connection between such main and such basement,
unless the inflow is permitted by a defect in the drain for which
the property owner is wholly or partially responsible, the bur-
den of proof is on the defendant to show want of ordinary care
of such owner.
Ibid.
14. In the circumstances stated in No. 13, and it appearing that dam-
age was caused by back flow of sewage from the drain, caused
by insufficiency of the sewer system, such sewage reaching the
basement through a defect in the drain, as apparently attributa-
ble to want of ordinary care of the property owner as attributa-
ble to actionable insufficiency of the sewer system, the former
cannot recover.
Ibid.
15. Want of ordinary care in "adopting" a plan for a sewer, found by
a special verdict, is construed to mean want of such care in
selecting the plan and in examining and passing upon its suffi-
ciency, or in failing to examine and pass upon its sufficiency, or
in constructing a sewer or series of sewers without any definite
plan, and not merely in voting upon a resolution of adoption.
Peck v. Baraboo,
48
16. If a city first collect surface water in a sewer or drain and there-
after, by reason of negligent construction or maintenance of the
sewer or drain, allow the water so collected to escape upon ad-
jacent land, it will be liable for the damage caused thereby. Ibid.
17. But a city cannot be held in damages by the landowner for chang-
ing the natural flow and increasing the volume of surface water
on his premises by the construction of streets and gutters, nor
because a sewer was inadequate, either by reason of negligence
in adopting plans in the first place or by reason of negligent
failure to maintain the sewer in good working order thereafter,
to carry off the surface water as fast as it accumulated. Ibid.
MUTUALITY.
See ATTORNEY AND CLIENT, 3. CONTRACTS, 15.
1. A grant from the United States of land bounded by a stream,
with no reservation or restriction, will be given effect according
to the law of the state in which the land lies. Farris v. Bentley.
671
2. A patent from the United States, without reservation, of land in
this state on a navigable stream not forming the boundary line
between states, vests title in the patentee to the center of the
stream midway between the banks, regardless of the navigable
channel, subject to the rights of the public in the stream; and
he also takes title to any unsurveyed island included within
such limits.
Ibid.
3. Such title of the patentee to an unsurveyed island cannot be di-
vested by the United States by a subsequent survey and patent
to another, in the absence of a showing that the island was left
unsurveyed by fraud or mistake.
Ibid.
4. The map of the original government survey, showing the outline
of an island near the south bank of a river, is not by itself suffi-
cient to show that an island now located in the north half of
the river was at that time in the south half.
Ibid.
5. The description of land in a complaint and judgment in ejectment
as "Fraction Number Five in Section two, Township eight
North, Range five east" (excepting a certain described parcel),
"together with all the riparian rights appurtenant thereto, in-
cluding all islands opposite the shore thereof and north of the
thread of the river," is sufficient, since with the aid of a com-
petent surveyor the lines can be run and the boundaries found.
Ibid.
6. That part of the bed of a stream to which a riparian owner has
title lies between the bank and the thread of the stream, and
between lines drawn from the points where his boundaries
reach the bank to the thread of the stream, at right angles to
the line of such thread.
Ibid.
See CONTRACTS, 17. PARTIES, 2.
Acts and omissions constituting negligence. See AUTOMOBILES.
DAMAGES, 3-6. DEATH. HIGHWAYS, 5, 6. MASTER AND SERVANT,
2-27. MUNICIPAL CORPORATIONS, 4-17. RAILROADS, 2-26. STREET
RAILWAYS. TELEGRAPHS AND TELEPHONES. TRIAL, 2, 4, 6, 11, 13.
WITNESSES, 1, 2.
1. The employment of a boy under the age of sixteen years in op-
erating a circular saw, in violation of sec. 1728a, Stats. (Laws
of 1907, ch. 523), is negligence as a matter of law. Sharon v.
Winnebago F. Mfg. Co.
185
2. Where as a result of such employment the boy is injured, the
negligence of the employer is the proximate cause of the injury
as a matter of law, the statute itself establishing the fact that
some injury should reasonably be anticipated as a natural and
probable result of its violation.
Ibid.
3. A finding by the jury in such a case that a defect in the saw
was the proximate cause of the injury, is immaterial. Ibid.
Same: Condition and use of land, buildings, and other structures.
4. Premises cannot be said to have been unsafe as to a person
thereon by invitation, so as to render the owner liable on that
ground for an injury to such invitee, if no injury could have be-
fallen the latter merely from the condition of the premises or
the ordinary conduct of the business thereon, without the inter-
vention of some responsible negligent human agency. Lippert
v. Joseph Schlitz B. Co.
453
Proximate cause of injury. See APPEAL, 15. MUNICIPAL CORPORA-
TIONS, 7, 8. NEGLIGENCE, 2, 3. RAILROADS, 3, 19. TRIAL, 2, 5.
5. When physical injury flows directly from extreme fright or shock,
caused by the ordinary negligence of one who owes the duty
of care to the injured person, such fright or shock is a link in
the chain of proximate causation as efficient as physical impact
from which like results flow. Pankopf v. Hinkley,
146
[6. Whether, in a complaint alleging that through defendant's neg-
ligence plaintiff received "a severe fright and shock" and that
a miscarriage resulted therefrom, the word "shock" is used to
mean a physical or a mental disturbance, or as meaning a con-
dition partaking of both, not determined.]
Ibid.
Contributory negligence. See AUTOMOBILES, 1-4. CARRIERS, 3. MAS-
TER AND SERVANT, 10, 11, 22, 25. MUNICIPAL CORPORATIONS, 5, 7,
8, 11-14. NEGLIGENCE, 10. RAILROADS, 3, 4, 8, 9, 18-26. STREET
RAILWAYS, 7. TELEGRAPHS AND TELEPHONES. TRIAL, 12.
7. In an action for death caused by negligence, where the burden of
proving the contributory negligence of the decedent is upon the
defendant, a finding in the special verdict negativing such con-
tributory negligence should not be changed by the trial court
unless the fact is established affirmatively by undisputed evi-
dence. Clary v. Chicago, M. & St. P. R. Co.
411
8. An injured person cannot be held to have been guilty of contribu-
tory negligence unless (1) he acted otherwise than an ordi-
narily prudent person would ordinarily act under the same or
similar circumstances, and (2) his acts or omissions so vary-
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