Bailey v. Costello

94 Wis. 87 | Wis. | 1896

Pinney, J.

1. The objection to the reception in evidence, and validity, of the plaintiff’s mortgage, as against the defendant, on the ground that there was no indorsement upon it to show that it had been filed in the town clerk’s office of the town of Eichland, is untenable. In legal contemplation, the filing of the mortgage was completed when it was delivered to, received by, and left with the town clerk of the proper town. Marlet v. Hinman, 77 Wis. 140; Smith v. Waggoner, 50 Wis. 160; Goodman v. Baerlocher, 88 Wis. 297; Manhattan Co. v. Laimbeer, 108 N. Y. 590. Plaintiff ought not to suffer for the default of the clerk, who was a public officer, and over whose acts he had no control. The statute E. S. sec. 832, subd. 10, and sec. 2314) requires the town clerk to enter, at the time of filing chattel mortgages, “ in a book properly ruled and kept therefor, the names of all the parties, arranging mortgagors alphabetically, the date of each mortgage, and the date of filing the same.” The record of the town clerk in this respect seems to have been offered and received in evidence at the trial, but the entries in this book have not been copied into the bill of exceptions, and have been omitted, so that the bill shows, when properly construed, that it does not contain all the evidence given at the trial, notwithstanding the usual certificate of the circuit judge at the close. We must infer that the record thus received in evidence showed that the mortgage in question had been filed in due season, so as to preserve the rights of the plaintiff. Indeed, it was not contended, but was substantially conceded on the argument, that it was delivered to and left with the clerk to be filed in due season, and the defendant’s counsel rested his objection on the ground that the clerk failed to make any indorsement of filing on the mortgage itself.

2. The exceptions to the findings of fact are general, and do not point out specificalty any particular finding of fact as erroneous. They are not sufficient, therefore, to entitle the defendant to call upon the court to review the findings of fact. The office of an exception is to specify or point out some particular matter as erroneous, in order that it may be reviewed. The authorities on this point are too numerous to require citation. But assuming, however, that the exceptions are sufficient, we must hold, upon the evidence before us, that the plaintiff did not waive, or agree to waive, his mortgage, when the horse was sold by Brenden to Quick, but wholly refused to release or forego it until it was paid in full. There is no evidence to the contrary. The case of Oswald v. Hayes, 42 Iowa, 104, is quite in point. The case is clearly distinguishable from Brandt v. Daniels, 45 Ill. 453, which proceeds upon the ground that there was an agreement or consent to waive or forego the mortgage, when the mortgagor sold to the third party, and upon the faith of "which he purchased, so that the mortgagee would be estopped from thereafter insisting upon his mortgage. Here the plaintiff distinctly refused to release or forego his mortgage claim until paid, and the parties so understood it. There was no ground, therefore, for holding him estopped from insisting upon it. The defendant in this case could get no better title to the horse than Quick, his vendor, had; and, as the mortgage was legally filed in the town of Richland, it became and remained valid and operative as against Brenden, the mortgagor, and subsequent purchasers of the property. It was not necessary for the plaintiff, in order to preserve his rights, to refile the mortgage in the city of Eichland Center, when Brenden, the mortgagor, removed to that place and kept the horse there, nor when he sold it to Quick, who resided and kept it in the same place. Jones, Chat. Mortg. § 260, and cases in notes.

3. It was not erroneous to deny the motion for a new trial. It-was not made until after judgment, and could not be then entertained, unless joined with a motion to vacate the judgment. Whitney v. Karner, 44 Wis. 564. But no such motion was made.

Eor these reasons, we perceive no error in the proceedings.

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