Vreeland v. Waddell

• Decision Date: 14 April 1896
• Citation: 93 Wis. 107,67 N.W. 51
• Parties: VREELAND v. WADDELL.
• Court: Wisconsin Supreme Court

93 Wis. 107

67 N.W. 51

VREELAND

v.WADDELL.

Supreme Court of Wisconsin.

April 14, 1896.

Appeal from circuit court, Sauk county; Robert G. Siebecker, Judge.

Action of replevin by Frank Vreeland against Henry Waddell. From a judgment for defendant, plaintiff appeals. Reversed.

Action of replevin growing out of the following state of facts: Plaintiff and defendant lived on the same farm, the former being a tenant of the latter. Defendant had a chattel mortgage on a span of horses belonging to plaintiff, to secure payment of a note for $50 and interest. The mortgage was in the usual form, authorizing the mortgagee, if at any time he deemed himself insecure, to take possession of the mortgaged property, and sell the same at public or private sale, with or without notice. Several months before the note matured, defendant, pretending to deem himself insecure, took the mortgaged property from the barn used by plaintiff, and put the same into another barn, on the same premises controlled by defendant. Within a few hours thereafter, and on the same day, with no one present but his two sons, and without notice to the mortgagor or anybody except those present, defendant sold the property to his son for $48; $1 being paid down at the time. The property thereafter remained in the possession of the defendant, he pretending to hold the same as agent for his son. Three days thereafter, plaintiff tendered to defendant the full amount due on the note, and demanded possession of the property. Defendant refused the tender or to deliver possession of the property, alleging that he would hold the same for $30 of other indebtedness plaintiff owed him. No claim was made at the time of such refusal for costs for the seizure and sale, or for any sum, on the note or otherwise, secured by the mortgage, in excess of the amount tendered. Plaintiff thereafter replevied the property in justice's court, and kept the tender good by paying the money into court. He recovered judgment in the justice's court, and defendant appealed. The horses were delivered to the plaintiff pending such appeal, the proper bond being given under the statute. On the trial in the circuit court, jury was waived. The court found all the facts as above stated, except that no objection was made to the tender before suit brought, and also found the value of the team of horses at $150, and, as a conclusion of law, found, in effect, that the stipulation in the mortgage that the mortgagee might take the property in case he deemed himself insecure, and sell the same, with or without notice, constituted a waiver of all notice of sale; that defendant, under the circumstances, had a right to sell the horses, and was entitled to recover. Appropriate exceptions were filed to raise the questions...