Roundy v. Converse

• Decision Date: 17 April 1888
• Citation: 37 N.W. 811,71 Wis. 524
• Parties: ROUNDY ET AL. v. CONVERSE ET AL.
• Court: Wisconsin Supreme Court

71 Wis. 524

37 N.W. 811

ROUNDY ET AL.

v.CONVERSE ET AL.

Supreme Court of Wisconsin.

April 17, 1888.

Appeal from circuit court, Rock county.

For some time previous to April, 1886, down to March, 1887, the defendant C. N. Converse was carrying on business as a merchant at Milton, in Rock county. Previous to the date first above mentioned, one James Pierce, who was the administrator of the estate of one G. W. Hamilton, the deceased son of the garnishee defendant, Hannah B. Hamilton, loaned to Converse $1,100 of the moneys of the estate of his intestate. Mrs. Hamilton was her deceased son's sole heir. Converse executed his note to Pierce for the loan, also a chattel mortgage, to secure it, on his stock of goods. The loan was made at the request of Mrs. Hamilton. The estate was duly settled in the county court about the middle of April, 1886, and the mortgage and note given for the loan were transferred to Mrs. Hamilton. A daughter of the latter, Mrs. Emma H. Cary, was the general agent of her mother, and had the whole charge and management of her business, Mrs. Hamilton being quite aged. On December 23, 1886, Converse executed to Mrs. Hamilton a new note for the same loan, secured by a new mortgage of that date executed to her by him on his stock of goods, and thereupon she surrendered to him the original note and mortgage executed to Pierce. The mortgage last executed was duly filed in the proper clerk's office. The mortgaged property is described therein as follows: “All my stock of goods, including the entire stock of goods in the store kept by me in the Hamilton store in Milton, including fixtures in store, and goods in store now, and those purchased to replace any which may be sold out.”The mortgage also contains the usual clause authorizing the mortgagee to take possession of the mortgaged property at any time she may deem herself insecure, and to sell the same. On March 3, 1887, Mrs. Cary was informed that an attachment against Converse had been, or was about to be, levied upon his stock of goods, and she thereupon went to the store of Converse, and found there a deputy-sheriff with such writ of attachment, who was about to close the store. She asserted the right of Mrs. Hamilton to the goods by virtue of the mortgage, and the deputy-sheriff and Converse yielded to her the possession of the store and goods. Thereupon all further proceedings under the attachment ceased, and the writ was never returned. The plaintiffs, who were such attaching creditors, afterwards commenced this garnishee proceeding against Mrs. Hamilton. After giving due notice, as required by the mortgage, Mrs. Cary, for and on behalf of her mother, sold the stock of goods for a little more than $1,600. Before this action was commenced, garnishee process was served upon Mrs. Hamilton in an action brought by another creditor against Converse, in which action she was charged, as a garnishee, to the amount of $160.88 by the judgment of the court. The plaintiffs having recovered judgment against Converse, the present action came on for trial July 1, 1887, and was then tried. At this time the defendant Converse first appeared, and obtained leave of court to answer, claiming exemptions of $200 stock in trade, and $200 worth of provisions for his family for one year. The trial resulted in quite voluminous findings of fact, substantially in accordance with the facts above stated. The court allowed Converse $200 for his exemptions,...