Andrews v. Jenkins

39 Wis. 476 | Wis. | 1876

LyoN, J.

We are not concerned to inquire whether the instructions which the learned circuit' judge gave the jury are correct in every particular, because we are satisfied that the undisputed evidence would have justified a direction to the jury to find for the defendants, and hence an erroneous instruction could not possibly injure the plaintiff.

The evidence proves conclusively that George R. Andrews, the plaintiff’s testator, had, at most, but a special interest in the logs in controversy, which interest was a lien upon the logs for any unpaid balance of advances made by him pursuant to the contract of December 8th; and so the jury were instructed. While such balance remained unpaid, probably Andrews might lawfully have taken possession of the logs, as against Gill & Son. Tet Gill & Son were the general owners of the logs, subject only to the lien for such advances, and their possession of them was never interfered with by Andrews. Indeed the latter permitted Gill & Son to run the logs to market and sell them as their own, without (so far as it appears) taking any steps to protect his interests, or to inform purchasers of his rights.

It is too well settled to admit of argument or doubt, that if the general owner of personal property, having possession thereof, sell and deliver it to a person who has no notice, actual or constructive, that the property is incumbered, but who purchases it in good faith for value, such purchaser will hold the property discharged of any prior incumbrance. This principle is decisive of the present case. The defendants purchased the logs in controversy in the market, and paid for them the market price, without notice, either actual or constructive, that Andrews had or claimed any lien upon or interest in them; and this after the property had been held by their vendor six months from the time he purchased the same of Gill & Son. On the undisputed facts of the case we are clearly of the opinion that Andrews in his lifetime was, and the plaintiff is, estopped from asserting any claim to the logs, and hence, that this action cannot be maintained.

The position that Andrews had only a 'special interest in or lien upon the logs in controversy,- may well rest upon the contract of December 8th, without resorting to parol testimony. Yet, on the authority of Kent v. Agard, 24 Wis., 378, and Wilcox v. Bates, 26 id., 465, no good reason is perceived why parol proof is not admissible to show that Andrews took the conveyance of the timber from Ketchum for Gill & Son as security for his advances to them. Construing the two contracts of December 7th and 8th in the light of such parol evidence, there seems to be no room to doubt that the only interest which Andrews had in the logs in controversy was a lien or incumbrance thereon in the nature of a mortgage, for his unpaid advances.

By the Court. — The judgment of the circuit court is affirmed.