89 Wis. 473 | Wis. | 1895
It is contended that by the bill of sale dated February 9, 1881, John Bertschy sold to the defendant about 2,987 bushels of clover seed, then stored with Rosenbaum Bros, in Chicago, which they sold as the property of the defendant for $17,959.78 net, and that John Bertschy’s indebtedness to the bank was thereby paid and extinguished to that amount. It is true that that instrument was in the form of a bill of sale, but no price was therein fixed upon the clover seed. It recited a “ consideration of one dollar and other valuable consideration to” John Bertschy “in hand paid,” but it is manifest from the evidence that there was no consideration except his indebtedness to the bank. Though in the form of a bill of sale, yet, as the court finds, it was given as mere security for the indebtedness mentioned; in other words, it was in legal effect nothing more than a chattel mortgage. Since, at the time the bill of sale was given, the clover seed was in the possession of Rosenbaum Bros, in Chicago, it was manifestly subject to any claim or lien they had thereon. It appears that the bill of sale was unknown to Rosenbaum Bros, until after they had, by direction from John Bertschy, sold the clover seed and applied the proceeds thereof upon his indebtedness to them. There is nothing to indicate that the bill of sale in any way affected their right to sell the clover seed. There is no pretense that the defendant ever authorized or had any knowledge of such sale or application until about October 21, 1881. The power of- attorney hereinafter mentioned was given immediately after the acquisition of such knowledge. It is true, the defendant, with the consent
The evidence seems to have justified the trial court in holding that the value of the lands conveyed to the defendant March 6, 1884, did not then exceed the amount which John Bertschy was then indebted to the defendant. John Bertschy lived nearly three years after that conveyance, and jret it does not appear that he took any exception to it; and this suit was not coimnenced until nearly eight years after that deed. It is contended that such deed to the defendant was subject to the plaintiffs right of dower therein, or, rather, that by taking the deed the defendant became liable to her for the money value of her dower therein at the time of making the conveyance, and interest since. The statute expressly authorized the plaintiff, as the wife of John Bertschy, to bar her dower in'the lands thus conveyedby joining Avith her husband . . . in a con
Since the power to Williams to sell and convey for the-purposes mentioned in the instrument was unlimited therein, we perceive no good reason why the sale and conveyance-directly to the defendant in consummation of that purpose should be held invalid merely because the sale and conveyance was not made • to a stranger for cash and then the cash paid to the defendant. The question presented is one of the power of the attorney to sell and convey, and not the power of the defendant to take by grant. The power of the defendant to accept such conveyance in satisfaction of its claim would seem to be too plain for argument.
We perceive no error in the record.
By the Court.— The judgment of the circuit court is affirmed.