Gregory v. Rosenkrans

• Decision Date: 18 September 1888
• Citation: 39 N.W. 378,72 Wis. 220
• Parties: GREGORY v. ROSENKRANS.
• Court: Wisconsin Supreme Court

72 Wis. 220

39 N.W. 378

GREGORY

v.ROSENKRANS.

Supreme Court of Wisconsin.

September 18, 1888.

Appeal from circuit court, Milwaukee county.

G. W. Hazleton, for appellant.

Gregory, Bird & Gregory, for respondent.

ORTON, J.

The only facts of this case necessary to be stated to make the only question involved and the decision intelligible are as follows: John M. Riter and John H. Horton owned a mill pond or lake near the city of Palmyra, and on December 6, 1881, by a written agreement, conveyed to one John Atkins the right, for the term of five years, to cut ice from said pond, and store it in ice-houses situated near the same. At the same date said Atkins obtained from one Reuben Rockway and wife a lease of fifteen acres of land situated near the margin of said pond, for the term of five years, for the construction of ice-houses thereon in which to store the ice harvested from said pond, with an agreement therein that the said Atkins might purchase said land at the end of the term for the consideration of $500. Between the 18th day of January and the 1st day of March, 1882, the defendant had advanced and loaned to said Atkins the sum of $3,000 to be used in constructing ice-houses on said premises, and procuring all the necessary tools, machinery, and appliances for the ice business, and Atkins gave him his note therefor, dated March 1, 1882, to become due October 1, 1882, and at the same time executed a chattel mortgage upon said ice-houses, and all the property used in said business, to secure the same. At the same date Atkins assigned and transferred to the defendant, as collateral security for said loan, the said agreement, by which he held the exclusive privilege to cut ice on said pond, and the said lease of the said 15 acres, and the agreement therein to purchase the same. On August 10, 1883, said mortgage and note were renewed by another mortgage upon the same property, and the time of payment extended to September 1, 1884. The defendant commenced an action for the foreclosure of said mortgages, and the rights of said Atkins in said agreements and lease, about the 6th day of July, 1885, and obtained a judgment of foreclosure therein January 22, 1886, and the mortgaged property was sold on said judgment to the defendant March 19, 1886. On April 19, 1883, Rockway and wife deeded said 15 acres to one Richard Sleep, and Sleep and wife deeded the same to the defendant in consideration of said $500, by virtue of said agreement to sell the same to said Atkins within said lease, on the 16th day of November, 1886. Atkins continued in possession of said ice-houses, and the land on which they were situated, and of the property used therewith and in said business, and in the enjoyment of said right to cut ice on said pond until said mortgage sale and confirmation thereof to the defendant. During the year 1884 the plaintiff advanced money to said Atkins in his ice business, and in consideration thereof obtained from him the right to cut ice on said pond, and store the same in said ice-houses; and the plaintiff, in the winter of 1884 and 1885, cut a large quantity of ice from said pond, and stored it in said ice-houses, until it could be sold or removed. This ice, or much of it, remained in said ice-houses until the defendant obtained possession of said property on said foreclosure sale, and the defendant removed or converted the same. For the value of this ice this suit is brought, and the above facts constitute the only defense. The circuit court granted a nonsuit in the case. In the foreclosure action Atkins, the plaintiff, and others were charged with a conspiracy to defeat the rights of said defendant in said property, by obtaining a foreclosure of a pretended mortgage held by the plaintiff, and a sale of the property, etc.; but there is nothing in that part of the subject-matter of said suit to affect the rights of the parties to said ice, and said ice was neither mortgaged nor sold to the defendant, and the defendant has no other right to the same than he can have by virtue of said assignment and mortgages and the foreclosure sale as above stated. The point is made by the learned counsel of the respondent that the said ice was a part of the realty of said pond, but that question can hardly be material in a case...