Barkow v. Sanger
| Decision Date | 06 November 1879 |
| Citation | 3 N.W. 16,47 Wis. 500 |
| Parties | BARKOW v. SANGER and another |
| Court | Wisconsin Supreme Court |
APPEAL from the County Court of Milwaukee County.
The case is thus stated by Mr. Justice TAYLOR:
Those portions of the special verdict to which exceptions were taken, are recited in the opinion.
Judgment affirmed.
For the appellants, there was a brief by Joshua Stark and N. Pereles & Sons, and oral argument by Mr. Stark. They argued, 1. That the mortgage was void as against creditors because it was given for a greater sum than was actually due. The condition of the mortgage on file must disclose the real nature of the transaction so far as it can be disclosed, or it will not be valid against creditors. Pettibone v. Griswold, 4 Conn., 158; North v. Belden, 13 id., 376; Hart v. Chalker, 14 id., 79; Youngs v. Wilson, 24 Barb., 510. Approving the doctrine of these cases, this court has indicated its opinion that such a mortgage as the one in question is void. Butts v. Peacock, 23 Wis., 360; Blakeslee v. Rossman, 43 id., 123. 2. That the mortgage was void because the description of the property therein ("one hundred cords of hard maple wood, three lumber wagons and one buggy, all being the property and in the possession of said Gottlieb Stolper"), was not sufficiently definite; the location not being indicated by naming the lot, ward, city, county or state, and there being no other description sufficient to identify it. Counsel also urged the objections to the special verdict, and to the instructions, which are considered in the opinion.
For the the respondent, there was a brief by Cotzhausen, Sylvester & Scheiber, and oral argument by Mr. Cotzhausen.
The defendants based their motion for a new trial upon the following grounds:
first, because the answer of the jury to the seventh question in the special verdict is uncertain and evasive, and inconsistent with the other findings.
Second, because the answer to the ninth question is not responsive to the question, but is indefinite and evasive, and said question is not, in fact, answered.
Third, because the answer to the thirteenth question is inconsistent and in conflict with the answer to the twelfth question.
Fourth, because the answer to the sixteenth question is contrary to law.
Fifth, because the court erred in submitting the sixteenth question to the jury for their finding, the same being a question of law, instead of a question of fact.
Sixth, because the court erred in instructing the jury "that, as the mortgage was given for a good consideration, its validity as to other creditors could not be impeached, unless it was shown by the evidence that the mortgage was made to benefit the mortgagor."
Seventh, because the special verdict is otherwise inconsistent, indefinite, evasive and imperfect, and contrary to law.
Upon the argument in this court, the learned counsel for the appellants made a point not made in the court below, that the judgment upon the special verdict should have been in favor of the defendants, instead of in favor of the plaintiff, because, upon the facts found by the special verdict, the mortgage was fraudulent and void in law as to creditors.
This argument was based wholly upon the fact that the special verdict finds that the actual indebtedness of Stolper to the plaintiff, at the time the mortgage was given, was only the sum of $ 743.13, being the amount of two notes held by him and the accrued interest thereon; whereas the mortgage was given on its face to secure the payment of $ 800, and interest thereon from the date thereof; and the learned counsel insists that because the mortgage on its face purports to have been given to secure a larger sum than was then owing by the mortgagor to the mortgagee, and does not disclose on its face that it was intended to cover any future advances to be made by the mortgagee, it is fraudulent and void in law as to the creditors of the mortgagor.
It is probably a sufficient answer to this argument, that no such position was taken in the court below on the motion to set aside the special verdict, and no motion was made for judgment in favor of the defendants upon the special verdict for that reason.
It was, we think, well argued on the part of the learned counsel for the respondent, that this argument ought not to prevail in this court, for the reason that if this position had been taken in the court below, either upon the motion for a new trial or for judgment in favor of the defendants, the respondent, in settling the bill of exceptions, would have insisted upon the insertion of the evidence bearing upon that question, and that such evidence might have shown that, notwithstanding the discrepancy between the amount mentioned in the mortgage and the amount then actually due to the mortgagee, the mortgage was given in good faith, upon the belief that it expressed the amount then actually due, or that it was agreed that the mortgagee should presently advance enough to make the indebtedness the sum of $ 800.
As the bill of exceptions does not pretend to contain all the evidence, we cannot say that there was not sufficient evidence given upon that point to satisfy the court and jury that no bad faith or fraud could be predicated upon the fact of the difference between the sum mentioned in the mortgage and the sum then actually due to the mortgagee.
The decisions in this court do not hold that a chattel mortgage which is given for a sum greater than is actually due the mortgagee is fraudulent and void in law. Neither of the cases cited by the learned counsel goes to that extent. Butts v. Peacock, 23 Wis. 359; Blakeslee v. Rossman, 43 Wis. 116. In the case first cited, the court, in discussing this point, say: "But even though it should be held that such a mortgage is not necessarily fraudulent, and that if the surrounding circumstances are such as fully to repel any idea of fraud, it may be sustained, yet when the surrounding circumstances are of directly the opposite character, the jury should be told that the mortgage is fraudulent."
This was said in a case where the mortgage on its face was for the security of $ 1,100. The proof showed that only $ 570 had been advanced thereon; that the mortgagee knew that the mortgagor was in embarrassed circumstances; and that the consideration of the mortgage was more than the value of the mortgaged property. It was claimed by the mortgagee that the mortgage was given to cover future advances; but the evidence showed that all the advances which had ever been made was the sum of $ 570. In the other case, the question as to any discrepancy between the consideration expressed in the mortgage and the amount of the actual indebtedness was not in the case, and was not decided or intended to be decided.
As said above, we cannot, therefore, in the absence of the evidence given upon the trial, say that the jury were not justified in finding that the mortgage was given in good faith, and not for the purpose of hindering or defrauding the creditors of the mortgagor, as the evidence of the surrounding circumstances might have been such as to repel any idea of fraud predicated upon that fact alone.
The seventh question submitted to the jury was as follows: "Did Stolper, after he gave the mortgage, continue to sell hard maple wood in the usual course of his business, and deliver the same out of the mortgaged wood?" Answer. "There was some of the mortgaged wood probably sold, but unbeknown to him."
We do not think, under the circumstances, this was an evasive answer to the question. It will be remembered that the mortgage was given on the 18th of November, and the defendants took the wood on the 20th of November; but one whole day had passed between the giving of the mortgage and the taking by the defendants. The evidence is not preserved in the bill of exceptions, and the answer must therefore be held to have been supported by it, and that the sales of the mortgaged wood which had been made had been made by his employees, without the knowledge of the mortgagor.
The answer amounts to this: that...
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