Lodge v. Williams

• Decision Date: 23 June 1898
• Citation: 100 Wis. 223,75 N.W. 954
• Parties: TRUSTEES OF ASHLAND LODGE, NO. 63, I. O. O. F., v. WILLIAMS.
• Court: Wisconsin Supreme Court

100 Wis. 223

75 N.W. 954

TRUSTEES OF ASHLAND LODGE, NO. 63, I. O. O. F.,

v.WILLIAMS.

Supreme Court of Wisconsin.

June 23, 1898.

Syllabus by the Judge.

1. Where each of two parties holds a promissory note, secured by a chattel mortgage running to both jointly, the situation is the same between them as if each held a chattel mortgage on an undivided interest in the chattel property to secure the payment of the note held by him; and in case of default in payment of the notes, the two become tenants in common of such property.

2. Where two persons are tenants in common of personal property under a chattel mortgage, neither can maintain replevin against the other to recover such property, or against the mortgagee for delivering the property to such other, or legally sell any interest therein, except his own, without the consent of his co-tenant.

3. If one tenant in common of chattel property sells the whole thereof without the consent of his co-tenant, the latter may recover of the sellor, as a wrongdoer, his undivided interest in such property, or may still claim such interest as a co-tenant with the vendee.

Appeal from circuit court, Ashland county, John K. Parish, Judge.

Action by the trustees of Ashland Lodge, No. 63, I. O. O. F., against E. V. Williams, administratrix, and W. Armstrong, in replevin. From a judgment for plaintiff, defendant E. V. Williams appeals. Reversed.

Action of replevin against W. Armstrong and D. A. Williams for a hack, span of horses and set of double harness. The complaint is in the usual form. During the progress of the trial a nonsuit was granted as to Williams. Thereafter, it being agreed that the only question of fact in dispute was the value of the property, that was submitted to the jury and resulted in a verdict of $700. Thereafter the court filed findings of fact in substance as follows: June 23, 1894, Armstrong gave a chattel mortgage on the property to T. C. Smith and D. A. Williams, to secure payment of a note of $556.75 to said Smith or order, and a note of $300 to said Williams or order, each bearing interest at 8 per cent. per annum, which mortgage was duly filed. Both notes were past due and wholly unpaid before the action was commenced, and the one payable to said Smith, and the interest in the chattel mortgage securing the same, were, for value, before such time, transferred to plaintiffs, who are still such owners. October 18, 1894, both notes being past due, plaintiffs demanded of Armstrong possession of the mortgaged property, with which he agreed to comply, but later refused, whereupon an action of replevin was brought therefor. Thereafter Armstrong, colluding with Williams to defraud plaintiffs, delivered the property to Williams who participated in the fraudulent scheme, whereupon plaintiffs discontinued the action against Armstrong, and commenced this one against both Armstrong and Williams. The property was delivered to plaintiffs pending the termination of the action pursuant to law, and before judgment they sold the same under the mortgage, obtaining therefor $540, such sale being in all respects honestly made. Defendant E. V. Williams is the administratrix of the estate of D. A. Williams, having been duly substituted for the latter, who died after the commencement of the action. Such administratrix is owner of the $300 note and of such portion of the proceeds of the chattel property as the amount due on such note bears to the amount due on both notes after deducting the expenses of the foreclosure of the mortgage. Plaintiffs are entitled to the possession of the property; that Armstrong unlawfully detained the same; that defendant Williams' intestate took the same from Armstrong knowing plaintiffs had taken steps to foreclose the chattel mortgage; that the value of the property when taken was $700, and plaintiffs' damage for the unlawful detention is 6 cents.

There was a motion made on the record and minutes of the court for judgment in favor of Williams for the amount due on the $300 note as his interest in the property, and for costs, which was denied and the ruling duly excepted to. The court decided that plaintiffs were entitled to judgment for the possession of the property and for costs against both defendants, and that defendant Williams and plaintiffs were entitled to the proceeds of the property less the expenses of the foreclosure of the mortgage, as indicated in the findings of fact. An order was thereupon entered requiring plaintiffs to pay into court for the use of Williams, his share of the proceeds of the property within 10 days, the same to be retained in court subject to its further order, and that after such payment judgment be entered by the clerk in accordance with the findings and conclusions of law. Exceptions were duly filed by appellant Williams, on which errors are assigned on this appeal, discussed in the opinion.

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