Michelstetter v. Weiner

• Decision Date: 24 May 1892
• Parties: MICHELSTETTER v. WEINER ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 298

52 N.W. 435

MICHELSTETTER

v.WEINER ET AL.

Supreme Court of Wisconsin.

May 24, 1892.

Appeal from circuit court, Chippewa county; R. D. MARSHALL, Judge.

Trover for a stock of goods by Morris Michelstetter against John Weiner, sheriff, and another. From a judgment on a verdict for plaintiff, defendants appeal. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

Trover for a stock of books and stationery. The defendant justified as sheriff under a writ of attachment against the property of one Henry Michelstetter, and claimed that he stock of goods was the property of said Henry, and had been conveyed to plaintiff in fraud of creditors. It appeared by the evidence that Henry Michelstetter originally owned the stock of goods. That on the 22d day of March, 1886, he executed three several mortgages on the property to secure his notes of that same date, viz., one to T. J. Cunningham for $205; one to Arthur Michelstetter, a brother, for $600, subject to the Cunningham mortgage; and one to the plaintiff (father of Henry) for $1,350, subject to the other two mortgages. These mortgages were all delivered at the same time to D. Buchanan, Jr., who was attorney for all of the mortgagees. The mortgages were immediately filed in the proper office, and upon the following day Buchanan demanded payment of the notes, which was refused. Thereupon Buchanan notified Henry Michelstetter that he took possession of the goods under the mortgages. Buchanan testified that “the result was that Michelstetter turned over the goods to me at that time in satisfaction of the mortgages.” Buchanan left Michelstetter in charge of the goods at $50 per month, with directions to account to him (Buchanan) for the receipts every Saturday night until other disposition was made. On the 25th day of March the attachments were levied on behalf of other creditors of Henry, and the goods taken by the sheriff. At the close of the testimony a special verdict was rendered, as follows: “(1) Was the mortgage offered in evidence given to plaintiff,--given in good faith to secure an actual indebtedness from Henry Michelstetter to him? and, if you say ‘Yes,’ what was the amount of such indebtedness at the time such mortgage was given, to wit, March 23, 1886? Answer. Yes; amount of indebtedness thirteen hundred and fifty dollars, ($1,350.) (2) Was the mortgage offered in evidence given to Arthur Michelstetter and the one given to Thomas Cunningham given in good faith to secure an actual indebtedness to the mortgagees? and, if you answer, ‘Yes,’ what was the amount of such indebtednesss to each of such mortgagees on the 23d day of March, 1886? A. Yes; indebtedness to Arthur Michelstetter, six hundred dollars, ($600;) indebtedness to T. J. Cunningham, two hundred five and twenty-nine one hundredths dollars, ($205.29.) (3) Did Henry Michelstetter sell the property in question to Morris Michelstetter in good faith, without any intent to defraud his other creditors? A. Yes. (4) What was the value of the property in question on the 25th day of March, 1886? A. Two thousand dollars, ($2,000.)” Judgment was entered for the plaintiff upon the verdict, and defendants appealed.Jenkins & Jenkins, for appellants.

D. Buchanan, Jr., for respondent.

WINSLOW, J., ( after stating the facts).

The appellants strenuously contend that the transactions between Henry Michelstetter and the chattel mortgagees constitute an assignment for the benefit of a...