Campbell v. Dick

• Decision Date: 03 June 1891
• Citation: 80 Wis. 42,49 N.W. 120
• Parties: CAMPBELL ET AL. v. DICK ET AL.
• Court: Wisconsin Supreme Court

80 Wis. 42

49 N.W. 120

CAMPBELL ET AL.

v.DICK ET AL.

Supreme Court of Wisconsin.

June 3, 1891.

Appeal from circuit court, Waupaca county; CHARLES M. WEBB, Judge.

October 30, 1889, the plaintiffs, constituting the firm of Campbell Bros. & Cameron, commenced this action of replevin against the defendants, constituting the firm of Dick & Berkley, to recover the possession of 1 span of bay horses, weighing about 2,800 pounds, 6 sets of logging sleds, and 3 yokes of heavy oxen, of the value in the aggregate of $650, alleged to have been wrongfully detained by the defendants from the plaintiffs to their damage in a sum stated; and, to sustain such claim, relied principally upon a chattel mortgage executed to them by Frank Jackson, September 21, 1888, and filed September 22, 1888, to secure the payment of $750. The defendants claimed to be the owners of the property, and lawfully entitled to the possession thereof as such, under and by virtue of a chattel mortgage executed to them by Frank Jackson, April 15, 1886, and additions thereto, and a renewal thereof on or about April 11, 1888, to secure the payment of $1,018.62. A jury having been waived, the cause was tried by the court, and at the close of the trial the court found, as maters of fact, in effect, that the plaintiffs claimed title to said property undersaid chattel mortgage of September 21, 1888; that, at the time of executing the same, the said Jackson was the owner of 4 yokes of heavy oxen for logging purposes, and 8 sets of logging sleds which he had used the previous winter in the woods; that the description in said mortgage was indefinite and uncertain as to which of said 3 yokes of oxen and which of said 6 sets of sleds were covered thereby; that said mortgage covered and included property that was then by law exempt from sale upon execution, but that the said Jackson's wife, then living with him, did not sign the same; that, prior to the time of receiving said mortgage, the plaintiffs had actual notice of the existence of the chattel mortgage given by said Jackson to the defendants; that the value of the horses described in the complaint, at the time they were replevied, was $225; that the value of the three yokes of oxen at that time was $285; that the value of the six logging sleighs at that time was $150, making a total of $660; that the defendants took the property described in the complaint from said Jackson, October 26, 1889, under and by virtue of a chattel mortgage executed by said Jackson, April 15, 1886, to them, in good faith, to secure a bona fide indebtedness to them of $1,018.62; that there was still due thereon $1,161.22; that said mortgage covered and included the very bay team and 3 of the oxen and the 6 sets of logging sleighs described in the complaint; that the other oxen described in the complaint were in good faith added to and included in said last-named mortgage by said Jackson and the defendants in the spring of 1888; that after said additions to that mortgage the same was, April 11, 1888, duly renewed by the filing of the proper affidavit of renewal; that the plaintiffs had due notice of such renewal prior to September 21, 1888; that October 26, 1889, said Jackson turned over and delivered all of the property described in the complaint to the defendants on their said chattel mortgage and debt thereby secured, and the defendants thereupon received the same upon such indebtedness and mortgage before the commencement of this action; that the defendants have been damaged 10 cents by the plaintiffs taking from them the possession of said property; that the defendants do not claim a delivery thereof to them; that the value of the defendants' interest in said property is the amount of their said indebtedness against said Jackson secured by said mortgage; that at the time of the commencement of this action the defendants were and still are the owners of...