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RUSSELL V. ELY, 67 U. S. 575 (1862)

U.S. Supreme Court

Russell v. Ely, 67 U.S. 2 Black 575 575 (1862)

Russell v. Ely

67 U.S. (2 Black) 575


1. In Wisconsin, the fee of mortgaged premises rests in the mortgagee or assignee only after foreclosure and sale, not upon the mere default of the mortgagor.

2. A deed in fee executed by the mortgagor subsequent to the mortgage deed but prior to the foreclosure, passes the legal title.

3. But if the mortgagee is in lawful possession of the mortgaged premises after condition broken, he will not be turned out until the debt is paid.

4. Possession obtained by the mortgagee through an arrangement with the tenant of the mortgagor whose lease has expired, without the consent of the mortgagor, is not lawful possession.

5. It is not necessarily error for a court to instruct the jury

Page 67 U. S. 576

that if the testimony of a certain witness is believed, it will establish a specified fact, leaving to the jury to believe or disbelieve the witness.

6. The propriety of such instruction depends upon the fullness, certainty, and clearness of the testimony of the witness upon the point in issue.

7. A bill of exceptions which alleges that the instructions of the court laid too large a stress upon the testimony of a particular witness should embody the testimony at length or so refer to it as to make it part of the record -- otherwise a court of error must presume that it justified the instruction.

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