Lowe v. Wing

• Decision Date: 31 October 1882
• Parties: LOWE v. WING.
• Court: Wisconsin Supreme Court

56 Wis. 31

13 N.W. 892

LOWE

v.WING.

Supreme Court of Wisconsin.

Filed October 31, 1882.

Appeal from circuit court, Trempealeau county.

Button Bros., for appellant, James Lowe.

W. F. Vilas, Miller & Atwood, and Saml. S. Miller, for respondent, Benjamin F. Wing.

ORTON, J.

It appears that the plaintiff took a mortgage of the property from one Parker the seventh day of February, 1874, which was duly filed in the town clerk's office on the fifteenth day of the same month, and that on the sixth day of August, 1875, the defendant took a mortgage from Parker of the same property. In the fall of 1876, both mortgages being due, the defendant took the property from the possession of Parker by virtue of his mortgage, and caused it to be sold at public auction without reservation or condition, and irrespective of the rights of the plaintiff, and received the full consideration of such sale. As to who became the purchaser the evidence is contradictory, but the defendant testified that it was sold to the brother of Parker, the mortgageor, and what afterwards became of it is not disclosed. On this evidence the circuit court granted a nonsuit on the sole ground that the defendant was guilty of no such wrong as would justify this action. To support the nonsuit in this court four several grounds are urged by the learned counsel who argued the cause: (1) That there was no sufficient identity of the property. (2) That the mortgage gave the possession of the property to the mortgageor absolutely for a time certain beyond the inception of defendant's rights. (3) That at the time of the alleged conversion the plaintiff's mortgage had ceased to be valid, by failure to annex to the mortgage or copy thereof on file, within 30 days previous to the expiration of two years after the mortgage was given, the affidavit of renewal required by section 2315, Rev. St. (4) That in taking possession of and selling the property by virtue of his mortgage, the defendant committed no wrong which would warrant this suit.

1. There was certainly some evidence tending strongly to prove the identity of the property, which should have been submitted to the jury.

2. Although the mortgage reserved the possession of the property in the mortgageor until the same should be taken possession of by the mortgagee, there was the usual clause giving the mortgagee the right to take possession of the property whenever he deemed the debt insecure.

3. This court has followed the courts of New York in the construction of the above statute for the renewal of chattel mortgages, and has held that “the clear intent of this provision was that in case of failure to make the affidavit the mortgage should cease to be valid as against creditors who should thereafter seize it, or purchaser who should thereafter purchase it.” Newman v. Tymeson, 12 Wis. 448, in which is cited Bates v. Wilbur, 10 Wis. 415, and Meech v. Patchin, 14 N. Y. 71. See, also, Case v. Jewett, 13 Wis. 498;Dillingham v. Bolt, 37 N. Y. 198;Edson v. Newell, 14 Minn. 228;Frank v. Playter, 12 Reporter, 19, (Mo.) The plaintiff obtained his right as mortgagee within the time when the plaintiff's mortgage was valid and therefore subject to it.

4. The defendant, by taking the property from the possession of the mortgagor and selling it, and receiving the full consideration of such sale, without regard to the rights of the plaintiff as senior mortgagee, committed a wrong for which the action is properly brought. This question has been so frequently and pointedly decided by this court, that it is needless to look elsewhere for authority upon it.

In the case of Cotton v. Watkins, 6 Wis. 629, Chief Justice WHITON said, in respect to the assignee of the chattel mortgage: “He had the same right to take possession of the property and foreclose the mortgage. He had the right, therefore, to maintain trespass against any...