Nix v. Wiswell

• Decision Date: 21 February 1893
• Citation: 54 N.W. 620,84 Wis. 334
• Parties: NIX v. WISWELL ET AL.
• Court: Wisconsin Supreme Court

84 Wis. 334

54 N.W. 620

NIX

v.WISWELL ET AL.

Supreme Court of Wisconsin.

Feb. 21, 1893.

Appeal from circuit court, Walworth county; John B. Winslow, Judge.

Action by Lydia Nix against George N. Wiswell and others for the conversion of personal property. From a judgment for plaintiff, defendants appeal. Reversed.

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

It appears from the record that the defendant Charles F. Hall, being the owner of 15 acres of land described, with the Pishcotaqua Hotel thereon, and the furniture therein, situated on the shore of Lake Geneva, borrowed of one William A. McConnell $16,000, May 18, 1883, and gave him therefor two notes, each signed by himself and one Shepard, each payable five years after date, one for $6,000 and the other for $10,000, and to secure said notes the said Hall and wife at the same time executed and delivered to said William A. McConnell a mortgage on said real estate for the full amount, which mortgage was recorded in the register's office May 23, 1883, and at the same time the said Hall, to secure both of said notes, executed and delivered to said William A. McConnell a chattel mortgage upon said personal property, which was duly filed May 22, 1883. That April 24, 1885, the said Hall sold said real estate and said personal property to one Charles H. Nix, and on that day he and his wife executed and delivered to said Charles H. Nix a deed of said real estate, which deed stated, in effect, that said real estate was free from all incumbrance whatever, except two certain notes and mortgages for $16,000, payable May 18, 1888, with 7 per cent. interest, and that he would warrant and defend the same except against said notes and mortgage, which deed was recorded October 19, 1886. That April 24, 1885, the said Charles F. Hall also gave to said Charles H. Nix a bill of sale of all said personal property, absolute in form. That May 17, 1886, the said Charles H. Nix sold, conveyed, and transferred all of said real and personal property to Hattie A. and James Hanley, in consideration of $35,000 paid and to be paid therefor. That as a part thereof said $16,000 indebtedness to McConnell was assumed by them. That to secure $7,000 of said purchase price the said Hanleys, on the day last named, executed and delivered to said Charles H. Nix a chattel mortgage or transfer in trust, wherein they granted, bargained, sold, assigned, and made over unto one William Prescott all of said personal property, in trust and as trustee, and his successor in trust thereunder, upon the express condition that if said Hanleys should pay to the legal or equitable holder of their certain promissory note for the said sum of $7,000, which they had that day made, payable to the order of themselves, and duly indorsed by them, and delivered to said Charles H. Nix, due in two years thereafter, then said instrument should be void and of no effect. That said chattel mortgage was duly filed February 2, 1887. That in January, 1887, the owners of said McConnell real-estate mortgage commenced the foreclosure thereof, and the following named persons were made defendants therein: Said Hall and wife, said Shepard, said Charles H. Nix, said Hattie A. and James Hanley, and others. That such proceedings were had therein that judgment of foreclosure and sale was entered therein June 14, 1887, for $17,518.96. That October 9, 1888, the said real estate was sold on said judgment of foreclosure and sale to one J. W. Cook for the sum of $15,500, leaving a deficiency, but that said Cook repudiated said purchase, and no money was paid thereon, nor any deed delivered therefor. That October 15, 1888, said sale was therefore vacated and set aside, and a resale of said premises ordered, and the same were resold by the defendant Wiswell, as sheriff, December 11, 1888, to the defendant Charles F. Hall for the sum of $10,500, leaving a deficiency of $9,835.12, for which judgment was entered on confirming said last-mentioned sale, December 21, 1888. That October 10, 1888, the said Wiswell, as such sheriff, took possession of all said personal property under and by virtue of said McConnell chattel mortgage, and continued to hold the same. That October 13, 1888, said personal property was sold to the plaintiff on said McConnell chattel mortgage for the sum of $3,000. That January 7, 1889, the plaintiff commenced this action against said Wiswell, as such sheriff, and said Charles F. Hall, for the unlawful conversion of said personal property, to her damage in the sum of $3,500 and costs. That January 24, 1889, the defendants separately answered, and justified the taking and conversion of said personal property under said McConnell chattel mortgage. That the issues so formed came on for trial, and at the close thereof the jury returned a special verdict to the effect (1) that said Charles H. Nix did not have actual notice of the Hall-McConnell chattel mortgage before he sold the property in question to the Hanleys; (2) that the Hanleys purchased said personal property from said Nix for value, and without notice of the existence of the Hall-McConnell chattel mortgage; (3) that the fair market value of the personal property in controversy on October 13, 1888, was $2,500; (4) that October 10, 1888, said Wiswell took possession of said personal property by the direction of the executors of said William A. McConnell, deceased, under and by virtue of the Hall-McConnell chattel mortgage; (5) that said Wiswell, by himself or his agents, retained possession of said personal property up to and until after the alleged sale to the plaintiff herein, October 13, 1888; (6) that said Charles F. Hall did, on October 13, 1888, direct or advise said Wiswell to retain possession of said personal property; (7) that the plaintiff, Lydia Nix, had notice that said Wiswell claimed to hold the personal property in controversy by virtue of the McConnell mortgage before she bid it in at the alleged sale, October 13, 1888; (8) that the attorney for the plaintiff announced, just before the alleged sale, that the personal property was to be sold under the Hanley chattel mortgage, claimed to be owned by Mrs. Meisch; (9) that from the time said Charles H. Nix resumed control of the personal property in controversy upon its surrender to him by the Hanleys in the fall of 1887, and in his subsequent acts, transactions, and declarations with reference to the same while in his possession or control down to the time of the taking thereof by Wiswell, the said Mrs. Meisch, a sister of said Charles H. Nix, was the real party represented by him, and in whose behalf such acts, transactions, and declarations were made or done, and that said Charles H. Nix in those matters did not act for himself, but for his said sister, Mrs. Meisch. That the court thereupon granted the plaintiff's motion for judgment upon said special verdict, and judgment was thereupon entered in favor of the plaintiff, and against the defendants jointly, for the value of the property as found by the jury, together with costs. From this last judgment the defendants bring this appeal.

John B. Simmons and T. D. Weeks, for appellants, in support of the proposition that a bona fide subsequent purchaser is protected only to the extent that he has paid the consideration, cited the following cases: Wade, Notice, §§ 60, 92, 93; 2 Pom. Eq. Jur. §§ 750, 755; 16 Amer. & Eng. Enc. Law, §§ 834, 835, and notes; Everts v. Agnes, 4 Wis. 343;Bank v. Newell, 71 Wis. 309, 37 N. W. Rep. 420;Hamlin v. Wright, 26 Wis. 50; Thomas v. Stone, Walk. Ch. 117; Stone v. Welling, 14 Mich. 514;Dresser v. Construction Co., 93 U. S. 92;Green v. Green, 41 Kan. 472, 21 Pac. Rep. 586;Wynn v. Carter, 20 Wis. 107.

Counsel also cited the following cases holding that an unrecorded mortgage may be enforced against a purchaser without notice to extent of the unpaid purchase money: Baldwin v. Sager, 70 Ill. 503; Haughwout v. Murphy, 21 N. J. Eq. 118; Hardin v. Harrington, 11 Bush, 367;Warner v. Whittaker, 6 Mich. 133;Trust Co. v. Maltby, 8 Paige, 361;Haescig v. Brown, 34 Mich. 503; Trustees of Union College v. Wheeler, 61 N. Y. 88;Wilson v. Hunter, 30 Ind. 471;Jewett v. Palmer, 7 Johns. Ch. 65;Tufts' Adm'r v. Tufts, 18 Wend. 620;Frost v. Beekman, 1 Johns. Ch. 288; Merritt v. Lambert, Hoff. Ch. 170.

Wallace Ingalls and Quarles, Spence & Quarles, for respondent.

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