Matthews v. Ott (In re Morgan)

• Decision Date: 10 April 1894
• Citation: 58 N.W. 774,87 Wis. 399
• Parties: IN RE MORGAN ET AL. MATTHEWS v. OTT ET AL.
• Court: Wisconsin Supreme Court

87 Wis. 399

58 N.W. 774

IN RE MORGAN ET AL.MATTHEWS

v.OTT ET AL.

Supreme Court of Wisconsin.

April 10, 1894.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

In the matter of the voluntary assignment of James Morgan & Co., and James Morgan and Thomas Morgan individually, Henry Ott, coroner, took a part of the assigned property on a writ of replevin in favor of his codefendant; and Quincy A. Matthews, assignee, appeals from an order denying his motion for an order directing defendants to surrender the replevined property. Affirmed.

On November 6, 1893, James Morgan & Co., and James Morgan and Thomas Morgan individually, made an assignment for the benefit of their creditors to Quincy A. Matthews, the appellant. On that day the sheriff of Milwaukee county had possession of the assigned property under executions against the assignors. While the sheriff so held the property the defendant Ott, as coroner, took a part of such property from the sheriff upon a writ of replevin in favor of the other defendant. Afterwards, by direction of the court, the sheriff delivered all the assigned property which then remained in his hands to the assignee. Then the assignee moved for an order directing the coroner and the plaintiff in the replevin action to surrender the goods replevied to the assignee. This appeal is from an order denying that motion.N. S. Murphey, for appellant.

W. J. McElroy, for respondents.

NEWMAN, J. (after stating the facts).

It is agreed that the question in this case is whether an action of replevin can be maintained against an assignee for the benefit of creditors for property in his possession, claimed by him under a valid assignment. The contention turns upon the point, whether the possession of the assignee is the custody of the law,--in law Latin, “custodia legis.” Many cases having more or less bearing upon the question are cited on either side. But, really, it is not an open question in this state. Such actions have been countenanced and sustained by this court. Lee v. Simmons, 65 Wis. 532, 27 N. W. 174;Singer v. Schilling, 74 Wis. 369, 43 N. W. 101; and Starke v. Paine, 85 Wis. 633, 55 N. W. 185,--were such actions. The question is not difficult, on principle and reason. The argument is this: The assignment gives the assignee no better title than his assignor had. The assignee's custody of property to which his assignor had no title is wrongful, as against the lawful owner. Such a wrongful custody...