Gilmore v. Roberts

• Decision Date: 09 April 1891
• Citation: 79 Wis. 450,48 N.W. 522
• Parties: GILMORE v. ROBERTS ET AL.
• Court: Wisconsin Supreme Court

79 Wis. 450

48 N.W. 522

GILMORE

v.ROBERTS ET AL.

Supreme Court of Wisconsin.

April 9, 1891.

Appeal from circuit court, Price county.

It appears from the record that March 13, 1888, the plaintiff loaned to one W A. Boutelle, $1,050, and in consideration thereof the said Boutelle at the same time executed and delivered to the plaintiff his three promissory notes, each payable to Mrs. M. A. Bradeen or bearer, at dates named, amounting in the aggregate to $1,100, and to secure the payment of which the said Boutelle, at the same time, executed and delivered to the plaintiff a chattel mortgage on his personal property in question, a copy of which was, on the same day, duly filed in the office of the city clerk of Chippewa Falls, in which said Boutelle then resided; that June 2, 1888, the firm of Roberts, Dirimple & Co. commenced an action against said Boutelle and another, and issued an attachment therein, and delivered the same to the sheriff, who thereupon attached the property covered by the mortgage; that August 1, 1888, the plaintiff, as chattel mortgagee, commenced the action against the said firm of Roberts, Dirimple & Co. and the sheriff, for the recovery of the property or its value; that the defendants answered and justified the taking under said writ of attachment and the judgment in that action; that at the close of the trial the court directed the jury to find a verdict in favor of the plaintiff, which they did, to the effect that they found for the plaintiff upon all the issues in the action; that the defendants unjustly took and unjustly detained the property described; that the value thereof was $1,500; that the value of the plaintiff's interest therein was $1,050; that the plaintiff's damages by reason of the unjust detention thereof was six cents. From the judgment entered upon that verdict accordingly, the defendants bring this appeal.D. Buchanan, Jr., for appellants.

Hallon Richardson, for respondent.

CASSODAY, J., ( after stating the facts as above.)

There is no claim that Boutelle did not own the property covered by the chattel mortgage at the time it was executed, nor that it was given by him with any intent to hinder, delay, or defraud his creditors. Mrs. M. A. Bradeen is named as the mortgagee, and the mortgage purports to secure notes payable to her “or bearer.”

1. Error is assigned because the court allowed the plaintiff to testify that the notes and mortgage were given to secure a loan made by the plaintiff to Boutelle at the time they were executed. There can be no reasonable doubt of the right to prove such consideration by parol. De Voin v. De Voin, 76 Wis. 66, 44 N. W. Rep. 839;Telford v. Frost, 76 Wis. 172, 44 N. W. Rep. 835;Stowell v. Eldred, 39 Wis. 614;Bank v Lewis, (Wis.) 47 N. W. Rep. 834, and cases there cited.

2. It is claimed that, as the notes and mortgage were never in fact delivered to Mrs. Bradeen, named therein, the mortgage never had any legal inception, and was therefore invalid. In support of such claim, the learned counsel for the defendants seems to rely particularly on Welch v. Sackett, 12 Wis. 243. In that case the mortgagor, without any request, assent, or knowledge of his foreign creditor, voluntarily procured a chattel mortgage to be drawn, and then executed the same in favor of such creditor, and thereupon delivered it to the person who drew it, with direction to file it, and notify the creditor; but before the creditor accepted the mortgage, or had any information respecting its execution, the property covered by the mortgage was seized on attachment against the mortgagor; and it was held that the mortgage was void as against such attachment. That case is clearly distinguishable from the case at bar. So are other cases of a similar character, as McPherson v. Featherstone, 37 Wis. 632. In the case before us, the mortgagor did not undertake to act, nor to authorize any one to act, as agent for the person named as mortgagee. The plaintiff, acting for himself, advanced the money and took the notes and mortgage as security for the repayment of the same. The mortgagor made the notes payable to Mrs. Bradeen “or bearer,” and then delivered them to the plaintiff, who thereby became the “bearer” of the notes, as he was in fact the owner of the notes. The mortgage was a mere incident to the notes, and the transfer of the latter to the plaintiff necessarily carried with them the mortgage. Emmons v. Dowe, 2 Wis. 322;Croft v. Bunster, 9 Wis. 503;Kelley v. Whitney, 45 Wis. 110. This court has recently held that “the fact that securities were taken by one person in the name of another, who had no interest in them, does not invalidate the securities, or prevent the person beneficially interested from enforcing payment of them by action.” Lane v. Duchac, 73 Wis. 646, 41 N. W. Rep. 962. Whether a mortgage executed by a mortgagor in a fictitious name,...