Gage v. Wayland

• Decision Date: 11 January 1887
• Parties: GAGE AND OTHERS v. WAYLAND.
• Court: Wisconsin Supreme Court

67 Wis. 566

31 N.W. 108

GAGE AND OTHERS

v.WAYLAND.

Supreme Court of Wisconsin.

January 11, 1887.

Appeal from circuit court, Eau Claire county.

After alleging that the plaintiffs are partners, the complaint proceeds as follows: “That on or about the nineteenth day of June, 1885, the above-named Elizabeth A. Wayland executed and delivered to the plaintiffs, as such copartners, a chattel mortgage, of which a copy is hereunto annexed as a part of this complaint; that the property described in said mortgage consisted of a certain stock of millinery goods and certain store fixtures, the same being all the personal property, of whatever description, on the nineteenth day of June, 1885, situate in the store building No. 321 South Barstow street, in the city of Eau Claire, in said county and state,--that is to say, in the store on that day occupied by said defendant as a millinery store,--which said millinery goods and store fixtures are particularly described and enumerated in a list and inventory thereof hereunto attached, marked ‘Schedule A,’ and made a part of this complaint, all of the value of one thousand dollars; that said mortgage was made in good faith, and without intent to defraud creditors or purchasers, and was given to secure the payment to the plaintiffs of the sum of four hundred and sixty-six dollars, with interest from the date of said mortgage, in which sum the defendant was theretofore indebted to the plaintiff on an account for goods sold her, the defendant, by the said plaintiffs, and which she then owed the plaintiffs.” It is then alleged that, after duly filing a copy of the mortgage in the office of the proper city clerk, and on the day it was executed, the plaintiffs, for reasons stated in the complaint, deemed themselves insecure, and thereupon, by their agent and attorney, duly demanded the mortgaged property of the defendant, who refused to deliver possession to them.

This is an action of replevin brought to recover the possession of such property, a specific schedule of which is annexed to and made a part of the complaint. The chattel mortgage, which is also annexed to and made a part of the complaint, contains the usual clause, to the effect that, if the mortgagees at any time should deem themselves insecure, they are authorized to take possession of the mortgaged property, and hold or dispose of the same. The defendant demurred to the complaint on the grounds (1) that the plaintiffs have not legal capacity...