Boyd v. Beaudin

• Decision Date: 07 February 1882
• Citation: 54 Wis. 193,11 N.W. 521
• Parties: BOYD v. BEAUDIN AND ANOTHER.
• Court: Wisconsin Supreme Court

54 Wis. 193

11 N.W. 521

BOYD

v.BEAUDIN AND ANOTHER.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from circuit court, Racine county.

Markham & Noyes, for respondent.

Fish & Dodge, for appellants.

TAYLOR, J.

This action was brought by the respondent against the appellants to recover the amount alleged to be due upon two promissory notes made by the said appellant Beaudin, as principal, and indorsed by the appellant Roissy, payable to the respondent, bearing date April 23, 1879; payable, one on September 10, 1879, and the other, July 10, 1880. It is alleged in the respondent's complaint that the notes were given in part payment for a vessel known as the Josephine, sold by the respondent to the appellant Beaudin. The complaint states facts sufficient to charge the appellant Roissy as indorser of the notes, and demands judgment against both the defendants for the amount due upon them. The appellants do not deny any of the allegations in the complaint, but set up an equitable counter-claim, in substance, “that the notes were given in part payment for the vessel Josephine, as alleged in the complaint; that the appellant Roissy had no interest in the vessel purchased; that he indorsed the notes for the mere accommodation of said Beaudin, and that said Beaudin paid in cash $150 for said vessel, in addition to said two notes; that the two notes were secured by a chattel mortgage upon the Josephine, given by said Beaudin to the respondent; that immediately after the purchase the said Beaudin expended $25 in fitting up the vessel for sailing, and sailed her during the summer of 1879; that he was unable to make payment of the note which became due September 10, 1879, and on November 18, 1879, the vessel was tied up at the port of Kenosha for winter, and was then free from all debt except the mortgage; that about November 25, 1879, the respondent had an interview with the appellants at Kenosha, and it was then agreed between the appellants and the respondent that the appellants should surrender to the respondent all claim to said vessel, her tackle, apparel, and furniture, and that in consideration thereof the said respondent should deliver up and cancel the two promissory notes in suit; that such agreement was not then consummated, but at respondent's request was to be closed up by the delivery of the vessel, etc., and the cancellation of said notes at some future day, and before navigation opened for the next ensuing season,--the respondent stating, as a reason for not closing the matter then, that he had not the notes with him.

It is then alleged that on January 29, 1880, the said respondent, in total disregard of his agreement, and without any notice of any kind to either of the appellants, sold the said vessel at public vendue in the said city of Kenosha, for the nominal price of $50, and as appellants verily believe the respondent purchased said vessel at said sale, paying therefor only the sum of $10; that at the time of such sale said vessel was well worth the sum of $350; that on June 19, 1880, the respondent sold the undivided half interest in said vessel to John Kane and Henry C. Kane for $175, and now claims to be the owner of the other undivided one-half thereof.

It then alleges that said sale was made in fraud of the rights of the appellants, and for a grossly inadequate price, and that no credit was given by the said respondent upon either of said notes for the money realized by the respondent upon the pretended sale under said mortgage; and as relief they pray that an account may be taken between the parties; that the respondent be credited with the amount due upon said notes, and he be charged with the sum of $175, realized by him from the sale of the undivided half interest in said vessel to the said Kanes; that if on such accounting anything shall be found due the respondent, the appellants may be allowed, by paying the same into court, to redeem the undivided one-half of said vessel now claimed to be owned by said respondent, and that he be compelled to deed the same to these appellants, or to the appellant Beaudin, and if the respondent shall not make good the title to said undivided one-half interest in said vessel, then they shall have judgment for the value thereof, or for a decree satisfying and cancelling said notes, and for such other relief as may be agreeable to equity.

To this counter-claim the respondent demurred, (1) because the court had no jurisdiction of the subject-matter of the counter-claim; (2) because there is a defect of parties, as it appears that the said John Kane and Henry C. Kane should be parties to an action to redeem from the mortgage, and because it appears that the appellant Roissy has no interest in the subject of the counter-claim; (3) because the facts stated are not sufficient to constitute a counter-claim; (4) because it appears on the face thereof that the alleged cause of action stated is not pleadable as a counter-claim. The demurrer was sustained, and the appellants appeal from the order sustaining the same.

We see no reason why the court has not jurisdiction of the subject-matter of this counter-claim. It may be that when a mortgagor seeks to redeem from a chattel mortgage, and recover the possession of the mortgaged property from the mortgagee in possession, he can accomplish the purpose in an action at law by first tendering the amount due on the mortgage, and bringing his action of replevin to recover the possession of the property. But this is not an adequate remedy when any part of the mortgaged property has been destroyed or unlawfully sold by the mortgagee. In such case the mortgagor has the right either to charge the mortgagee with the value of the property sold, or he may waive that right, and charge him with the moneys realized by him on such sale; and, when the mortgagee has used the mortgaged property, and realized money from such use, he may be charged with the moneys so realized. The general rule is that when the mortgage is forfeited, and the mortgagee takes possession on account of such forfeiture, the remedy of the mortgagor is to bring an equitable action to redeem. Herman, Mortg. § 191; Jones, Mortg. §§ 683, 684.

In this case the mortgagor had the right to bring his equitable action, because the mortgagee had made a sale which it might be necessary to avoid, and because he wished to charge him with the money received on the sale of the half interest, and possibly for the use of the other half interest; and it may also have been...