Smith v. Waggoner

• Decision Date: 21 September 1880
• Citation: 6 N.W. 568,50 Wis. 155
• Parties: SMITH v. WAGGONER, Administrator, etc
• Court: Wisconsin Supreme Court

6 N.W. 568

50 Wis. 155

SMITH v. WAGGONER, Administrator, etc

Supreme Court of Wisconsin

September 21, 1880

Argued August 31, 1880

APPEAL from the Circuit Court for Oconto County.

Replevin against Mrs. S. H. Waggoner and her husband, who had taken the property as her agent. The case is stated in the opinion. By direction of the court, the jury found that the plaintiff was owner and entitled to the possession of the property in suit; and that defendants unlawfully took and unjustly detained it. They further found the value of the property and nominal damages for its detention; and also the facts in regard to the execution and filing of the several chattel mortgages under which the respective parties claim; that Mrs Waggoner took her mortgage without actual notice of that given to the plaintiff; and that neither of the mortgages was ever recorded in the office of the register of deeds. From a judgment in favor of the plaintiff, the defendants appealed. Pending the appeal, Mrs. Waggoner died, and Mr. Waggoner became administrator of her estate.

Judgment affirmed.

W. H. Webster, for the appellants:

1. The only proper evidence of the filing of a chattel mortgage is the entry thereof in the book required to be kept by the clerk for that purpose. No such book having been kept or entry made, the case stands as though the respondent's mortgage had never been filed. Shove v. Larsen, 22 Wis. 142; McCutchin v. Platt, id., 561. 2. The mortgaged property was in fact realty, and constructive notice of the mortgage could be given only by recording it in the register's office. Undoubtedly the owner and the respondent might, as between themselves, fix upon it by contract the character of personalty; but they could not give it that character as between either of them and third parties. Frankland v. Moulton, 5 Wis. 1; Bringholff v. Munzenmaier, 20 Iowa, 513; dissenting opinion of DILLON, J., in Sowden & Co. v. Craig, 26 id., 156; Lamphere v. Low, 3 Neb., 131; Fortman v. Goepper, 14 Ohio St., 565, per WHITE, J.; Brennan v. Whitaker, 15 id., 446; Simons v. Pierce, 16 id., 215; Powers v. Dennison, 30 Vt., 752; Davenport v. Shants, 43 id., 546; Hunt v. Bay St. Iron Co., 97 Mass., 279; Haven v. Emery, 33 N. H., 66, 69; Fryatt v. Sullivan Co., 5 Hill, 116; Trull v. Fuller, 28 Me., 545; Prince v. Case, 10 Conn., 375; Laudom v. Platt, 34 id., 517; Thropp's Appeal, 70 Pa. St., 395; Eastman v. Foster, 8 Met., 19; Gooding v. Riley, 50 N. H., 400; Voorhees v. McGinnis, 48 N. Y., 278. The recording of respondent's mortgage as one of real estate would have protected him against levies on the property as personalty. F. L. & T. Co. v. Railway Co., 3 Dillon, 412; M. & M. R. R. Co. v. M. & W. R. R. Co., 20 Wis. 188. The appellants, without actual or constructive notice of the respondent's lien, took a chattel mortgage of the property, thus giving it the character of personalty as between themselves and the mortgagor. There was nothing in that act to notify them of the former mortgage, or to estop them from denying that they had such notice, or to give the property the character of personalty as between them and third persons. 3. If defendants are to be treated as second mortgagees, still they had a right to take possession of the property, and make therefrom the amount due on their mortgage, as against all the world except the prior mortgagee. Newman v. Tymeson, 13 Wis. 172. In case of a sale under the first mortgage, they would be entitled to any surplus, to the extent of their mortgage lien. The prior mortgagee cannot take possession for the mere purpose of protecting the mortgagor in his use of the property, and destroying the rights of other lien-claimants. The respondent's own proof shows that he did not propose to take the property from the mortgagor, or let any one else do it; that his purpose was, through his mortgage, to protect the mortgagor in the continued possession, in spite of other creditors. The proof further shows that in the arrangement that was made between the respondent and Corcoran, the mortgagor, "there was nothing in particular said about what Corcoran was to do with the proceeds of the running of the mill." Such an arrangement made the mortgage absolutely void as against other creditors. Steinert v. Deuster, 23 Wis. 136; Blakeslee v. Rossman, 43 id., 121, and cases cited in the brief of counsel in that case. It is not necessary that such an arrangement should have been made at the inception of the mortgage; the effect is the same whenever it was made. Putnam v. Osgood, 52 N. H., 148, and cases there cited.

For the respondent there was a brief by Hudd & Wigman, and oral argument by Mr. Hudd:

1. Under the statute, it is the deposit of the chattel mortgage with the proper clerk, that makes it notice. The failure of the clerk to keep the book, and make the entries therein, required by statute, could not deprive plaintiff of his rights. Dikeman v. Puckhafer, 1 Abb. Pr., N. S., 32. 2. Fixtures like those here in question become chattels where a contract treating them as such has been made between the owner of the land and the person who claims them as chattels. Hilliard on R. P., ch. 1, §§ 18-28; Russel v. Richards, 1 Fairf. (Me.), 429; 1 Hill, 176; Godard v. Gould, 14 Barb., 662; Voorhees v. McGinnis, 46 id., 242, 253; S. C., 48 N. Y., 278; Kinsey v. Bailey, 9 Hun, 452; Sisson v. Hibbard, 10 id., 420; Mott v. Palmer, 1 N. Y., 564; Ford v. Cobb, 20 id., 344, 348-9, 352; Sheldon v. Edwards, 35 id., 279; Tifft v. Horton, 53 id., 377; Shell v. Haywood, 16 Pa. St., 523; White's Appeal, 10 id., 252; Harlan v. Harlan, 20 id., 303; Coleman v. Lewis, 27 id., 291; Hunt v. Bay State Iron Co., 97 Mass., 279. If defendants had subsequently bought the property, or taken security upon it, as real estate, the question might arise whether the prior mortgage was void because not recorded as a real-estate mortgage; but that question cannot arise where the second mortgagee also dealt with the property as chattels, and claims them as such.

OPINION

HARLOW S. ORTON, J.

This is an action of replevin brought by a senior mortgagee against a junior mortgagee of the same property, who had taken possession of and removed a part of it by virtue of his mortgage.

That the senior mortgage was filed in the office of the town clerk of the proper town, and in proper time, were facts specifically found by the jury; and such finding was not excepted to, and therefore, strictly, the question whether it had been duly filed was waived. But objection was taken on the trial to the introduction of the mortgage, on the ground that no sufficient proof of the filing of the mortgage was made by a certified copy of the mortgage and its indorsement of filing; and the learned counsel of the appellant may have rested upon such objection in good faith, as sufficient to raise the question, without excepting to the finding. It was admitted that no book had ever been kept by the town clerk of that town for the entry of chattel mortgages. The statute requires the town clerk "to file all chattel mortgages when presented, and to enter at the time of filing, in a book properly ruled and kept therefor, the names of all the parties, etc., the date of each mortgage, and the date of filing the same," etc. (subdivisions 9 and 10, sec. 832, R. S.); and the clerk thereafter holds the custody of the mortgage. Section 2314 defines the filing above required as follows: "Such clerk shall indorse on such mortgage or copy the time of receiving the same;" and defines the custody of the mortgage above given as follows: "and keep the same in his office for the inspection of all persons;" and then defines the entries of the mortgage in a book, above required, as follows: "Such clerk shall also make the entries as required in subdivision 10 in section 832." Section 2313 makes the validity of...