Fowler v. Hunt

• Decision Date: 03 February 1880
• Citation: 4 N.W. 481,48 Wis. 345
• Parties: FOWLER and another v. HUNT
• Court: Wisconsin Supreme Court

4 N.W. 481

48 Wis. 345

FOWLER and another v. HUNT

Supreme Court of Wisconsin

February 3, 1880

Argued January 10, 1880

APPEAL from the Circuit Court for Crawford County.

The defendant as sheriff levied upon certain goods and chattels by virtue of executions against the property of one Wetzel in whose possession the goods were found. Plaintiffs claimed a right to the possession of the property by virtue of a mortgage thereof executed by Wetzel to them about a month before the seizure, to secure the payment of $ 424, the purchase money of goods sold by them to Wetzel; which mortgage was filed in the proper clerk's office on the day of its execution. The answer averred, among other things that the mortgage was in fraud of creditors, and that it did not cover the goods in dispute. The description of the property in the mortgage will appear from the opinion.

The plaintiffs had a verdict and judgment for the amount of the mortgage debt; and defendant appealed from the judgment.

Reversed and cause remanded.

For the appellant, there were separate briefs by M. M. & D. Webster and Thomas & Fuller, and oral argument by Mr. Thomas.

For the respondents, there was a brief by Wm. H. Evans and Stoneman & Chapin, and oral argument by Mr. Evans.

HARLOW S. ORTON, J.

OPINION

ORTON, J.

The chattel mortgage on which the plaintiffs predicate their right to the property, the value of which they seek to recover in this action, was clearly void for uncertainty of description. The language of description is as follows: "The entire stock in trade and fixtures of the said William Wetzel, consisting of clocks, watches, chains, show cases, jewelry, and all goods included in his stock, tools and material, excepting one safe, one regulator, one astronomical clock, two musical clocks, and stock in trade to the amount of two hundred dollars."

This exception leaves in the mortgagor a proportionate interest in each article mortgaged, as $ 200 is to the whole value of the property, uncertain and unsevered, and which is unseverable and incommutable, except by some future act of the parties; or the mortgage leaves a right of future selection of any of the property to the mortgagor of the value of $ 200, the residue of which can be ascertained only by such selection; and, in either view, such uncertainty of description renders the mortgage void.

"In order to transfer the right of property in goods or chattels, the...