C. Aultman & Co. v. Silha

• Decision Date: 23 May 1893
• Citation: 85 Wis. 359,55 N.W. 711
• Court: Wisconsin Supreme Court
• Parties: C. AULTMAN & CO. v. SILHA ET AL.

85 Wis. 359

55 N.W. 711

C. AULTMAN & CO.

v.SILHA ET AL.

Supreme Court of Wisconsin.

May 23, 1893.

Appeal from circuit court, Monroe county; A. W. Newman, Judge.

Action by C. Aultman & Co. against John Silha and another to foreclose a mortgage. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

Action to foreclose a real-estate mortgage given by John Silha to appellant September 24, 1888, to secure his notes, aggregating $1,500. The facts are as follows: On the 14th of September, 1888, John Silha gave to appellant a written order for an engine and thresher, to be shipped to him from Canton, Ohio, in care of the company's agent at La Crosse, “as quick as possible,” in consideration of which Silha agreed in the order to receive the machinery on its arrival, give his notes therefor, aggregating $1,500, and give as security for the notes a first mortgage on said machinery and on 80 acres of land, which land is stated, in a property statement attached, to be owned by him, in Monroe county, and unincumbered. The order also contains a stipulation that the machine is to be warranted by the company. The machinery was received by Silha under the order, and on the 24th of September, 1888, he gave three notes for the purchase price,--two of $700 each, and one of $100,--which notes each specified that they were given for “value received in one Star engine and New Model separator,” and contained the following condition: “The express condition of the sale and purchase of * * *, for which this note is given, is such that the title, ownership, or possession does not pass from the said C. Aultman & Co. until this note and interest is paid in full. And the said C. Aultman & Co., or their authorized agents, are hereby fully authorized and empowered to proceed to collect the same at any time they may reasonably deem themselves insecure, even before the maturity thereof, and may take possession of said machinery, sell the same, and apply the proceeds towards the payment of this note, after paying all costs and necessary expenses.” At the same time Silha gave a chattel mortgage on the machinery to secure payment of said notes, which contained, among other things, the following statement: “And I, the mortgagor, in order to induce C. Aultman & Co. to accept this mortgage, now represent that I, the mortgagor, am the actual owner of the property described in this mortgage, and that it is free from all incumbrance.” The mortgage also contained very full and sweeping conditions authorizing the company to take possession of the property in case of any default in payment of principal or interest, or in case of waste, misuse, or secretion of the property, and sell the same, applying the net proceeds upon the notes; and, in case the whole debt and expenses should not be satisfied, there was a covenant to pay the deficiency. This mortgage was properly filed on the 26th of September following. At the same time, and to secure payment of the same notes, John Silha executed and delivered a mortgage upon 80 acres of land, which contained the usual provisions, and is the mortgage in suit in this action. At the time this mortgage was executed the only interest which John Silha had in the real estate mortgaged was an equitable title to an undivided one-sixth thereof as one of the heirs at law of Wenzel Silha, Sr., deceased, and the legal title to the whole thereof, and the equitable title to the undivided five-sixths thereof, was in the defendant Wenzel Silha. On the 2d day of February, 1889, defendant Wenzel conveyed to John the legal title to said land, and received back a mortgage on the land for $160, being a portion of the purchase price, which mortgage was properly recorded, and no part thereof has been paid. The defendant John used the machinery for threshing in the fall of 1888, and in October paid $50 on the $100 note. He made many complaints of defects in both engine and separator, and finally, in July, 1889, he made a settlement with the...