Bailey v. Costello

• Decision Date: 13 October 1896
• Citation: 68 N.W. 663,94 Wis. 87
• Parties: BAILEY v. COSTELLO.
• Court: Wisconsin Supreme Court

94 Wis. 87

68 N.W. 663

BAILEY

v.COSTELLO.

Supreme Court of Wisconsin.

Oct. 13, 1896.

Appeal from circuit court, Richland county; George Clementson, Judge.

Action by H. T. Bailey against Thomas Costello. There was a judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff brought replevin to recover possession, from the defendant, of a certain horse, formerly owned by one Brenden, and mortgaged by him to the plaintiff. The evidence showed that, at the time the mortgage was given, Brenden lived in the town of Richland, and kept the horse there, but subsequently he moved to the city of Richland Center, and kept the horse in the city; that the chattel mortgage was delivered by the plaintiff to the town clerk of the town of Richland, and left with him to be filed, but there was no indorsement of filing on the mortgage. Page 308 of the town clerk's record, not set forth, however, in the bill of exceptions, was offered and received in evidence, as well as the mortgage, both against the objection of the defendant that the mortgage could not be considered as legally filed, for the want of an indorsement of filing thereon. Brenden sold the horse to one Quick, and he subsequently sold it to the defendant, for value, and the latter, when he purchased it, had no notice in fact of the plaintiff's mortgage. The evidence was to the effect that, when Brenden sold the horse to Quick, the plaintiff, Bailey, Quick, and Brenden were all present, and that the plaintiff had previously told Brenden that if he had a chance to sell the horse, and the man he sold him to would give him (Bailey) security for it, that would be all right. He said, in the presence of these parties, that he would not release the mortgage till he had the security. He told Quick the amount due, and that it would be all right if he gave security. At this interview Quick wanted to pay $50, and have the horse released, but the plaintiff told him he would not release until he got security. Quick got the horse, and he consented to Quick's having it if he would pay $50 and secure him, and in no other way, both Quick and Brenden being present at the time. Quick paid him $25, and the plaintiff repeatedly dunned him for the balance, and did not ask Brenden for his pay after that. He understood that Quick was to buy the horse with the mortgage on it. He made a bargain with Quick about it, and told him he would release the mortgage when he got his pay, but not until the mortgage was paid. The plaintiff's mortgage was not filed in the office of the clerk of the city of Richland Center after Brenden went there to live, taking the horse with him, to the knowledge of the plaintiff; and Quick, to whom he sold the horse, lived and kept him in said city. It was insisted that the plaintiff's mortgage was not properly filed, no indorsement of filing having been made thereon; that the plaintiff had consented to the sale to Quick, and so had waived his rights under the mortgage, and was estopped from claiming the horse as against the defendant, who was an innocent purchaser; that the plaintiff should have refiled his mortgage in the city of Richland Center. The court found, as appears from the bill of exceptions, “that the plaintiff is entitled to recover; that the mortgage was given and filed as the law requires, and was not required by the law to be refiled; the property was sold to Quick, and Mr. Bailey knew of it, but the proof shows he did not consent to forego his mortgage.” A formal finding in the record is to the effect that the plaintiff had a lien on the property, by virtue of his mortgage, for $144; that he was entitled to the right of possession until the said lien was discharged, and that, subject thereto, the right of possession was in the defendant; that the defendant unjustly detained the horse, and the plaintiff's damage was the sum of six cents. The exceptions to the findings of fact are general, and do not specifically point out any one of the different propositions of fact as erroneous. They are in substance: (1) That the findings of fact are contrary to the evidence. (2) They are not supported by the evidence. (3) They are contrary to all the evidence given at the trial, etc. A motion for a new trial, on the same grounds and others, was made after judgment for the plaintiff, and was denied. The defendant appealed from the judgment.L. N....