Funk v. Paul

• Decision Date: 22 September 1885
• Citation: 24 N.W. 419,64 Wis. 35
• Parties: FUNK v. PAUL.
• Court: Wisconsin Supreme Court

64 Wis. 35

24 N.W. 419

FUNK

v.PAUL.

Supreme Court of Wisconsin.

Filed September 22, 1885.

Appeal from circuit court, Rock county.

The following facts appear from the record: January 3, 1883, one Peter Gleim borrowed of the defendant $750, and gave to him therefor his note for the amount, due in one year, secured by chattel mortgage on certain personal property therein described, including “six (6) milch cows” in Gleim's possession, on his farm, by that description, and no other. That mortgage was duly filed in the proper office on the day it was given. Four of the cows were with calf, and dropped their calves in April, 1883. These four cows and their four calves remained in Gleim's possession until in March, 1884. Gleim being indebted to the plaintiff on a note for $225, given in January, 1883, and due in January, 1884, to secure the same, and at the plaintiff's request, did, October 8, 1883, execute and deliver to the plaintiff a chattel mortgage on certain personal property therein described, including “5 spring calves” in the possession and on the farm of Gleim, and these calves included the four calves above mentioned, which mortgage was duly filed in the proper office on the day it was given; and the only consideration therefor was the prior indebtedness on said note, and that was a bona fide indebtedness. In March, 1884, Gleim having given two other chattel mortgages, which were duly filed, to other parties, upon his personal property, upon some of which they were first liens and upon the balance subsequent liens, ran away, leaving the property on his farm; that thereupon a constable, acting as agent for all the mortgagees, took possession of all the property then on the farm covered by any of the mortgages, and, after having advertised the same, sold all the property at public sale; that at such sale, by an arrangement made by all the mortgagees, the defendant acted as treasurer, and received all the moneys and proceeds of the property sold; that after the sale the mortgagees came together, and after paying from the proceeds the expenses of sale, settled among themselves the fractional shares of such moneys and proceeds to which they were severally and of right entitled, and such shares were severally paid over to them respectively by the defendant, except that both the defendant and the plaintiff claimed the net proceeds of the four calves mentioned, amounting to $66, which sum the defendant refused to pay over to the plaintiff, but claimed it as his own under his chattel mortgage; that all the moneys and property retained by the defendant, including the $66, were insufficient to pay up the amount due on his note and mortgage; that it was not necessary for a calf to follow a cow for nurture more than four months, and that these calves, shortly after they were dropped, were kept by Gleim in a lot by themselves, separate from the cows, after the plaintiff's mortgage was given; and that the plaintiff, at the time of taking his mortgage, had no actual notice of any prior mortgage. To recover the $66 so retained by the defendant this action was brought. In the justice's court the plaintiff obtained judgment, but on appeal the circuit court, upon the facts stated, gave judgment for the defendant. From that judgment the plaintiff brings this appeal.C. M. & F. M. Scanlan, for appellant, William Funk.

Norcross & Dunwiddie, for respondent, Lemuel Paul.

CASSODAY, J.

It has long been settled that “a grant of that which a grantor has potentially, though not actually, is good.” Grantham v. Hawley, Hob. (132,) 286; Fonville v. Casey, 1 Murph. 389; S. C. 4 Amer. Dec. 559; McCarty v. Blevins, 5 Yerg. 195; S. C. 26 Amer. Dec. 262. In this state a chattel mortgage given upon a crop of grain at or about the time it is sown, and before it is up, or has any appearance of a growing crop, is wholly inoperative upon such crop when grown. Comstock v. Scales, 7 Wis. 159;Lamson v. Moffat, 61 Wis. 153;S. C. 21 N. W. Rep. 62. But where such chattel mortgage has been given after the seed sown has sprouted and made its appearance above the ground as a growing crop, there can be no doubt but what it is operative, and covers the grain when it comes into existence as the product or as an accession to what was growing when the mortgage was given and covered by it. Bryant v. Pennell, 61 Me. 108; Conderman v. Smith, 41 Barb. 404. On the same principle, where the owner of a domestic animal gives a mortgage thereon during the period of gestation, the mortgagee will, as against the mortgagor, be entitled to the offspring when born. McCarty v. Blevins, supra; Conderman v. Smith, supra; Hughes v. Graves, 1 Litt. (Ky.) 317;Evans v. Merriken, 8 Gill & J. 39;Forman v. Proctor, 9 B. Mon. 124;Fowler v. Merrill, 11 How. (U. S.) 375, 396;Kellogg v. Lovely, 46 Mich. 131;S. C. 8 N. W. Rep. 699. But it is urged that notwithstanding the mortgage may cover the calves, as between the parties, yet that as they are not described nor in any way referred to in the defendant's mortgage, the filing of it was not constructive notice to the plaintiff, and hence that his mortgage gives him the superior right. Had the defendant, upon obtaining his mortgage, taken possession of the cows, and retained them, and the calves, when dropped, until after the plaintiff obtained his mortgage, then he undoubtedly could have held them as against the plaintiff. By reason of such possession the plaintiff and the world would have been conclusively presumed to know the defendant's interest in and right to the calves. Our statute authorizes the filing of the mortgage in lieu of such possession, and as equivalent to it. Section 2313. Such filing is constructive notice to third parti...