63 Wis. 249 | Wis. | 1884
The hill of sale having been given to secure the loan of money must he treated in all respects as a chattel mortgage. Lamson v. Moffat, 61 Wis. 156; Manufacturers’ Bank v. Rugee, 59 Wis. 221; Rockwell v. Humphrey, 57 Wis. 410. Being a chattel mortgage, and the makers being residents of Madison at the time of its execution and since, the filing of it in the town of Blue Mounds was of no significance, under our statute, as against the appellants or any other person than the parties thereto. Sec. 2313, R. S.; Maier v. Davis, 57 Wis. 216; Rockwell v. Humphrey, 57 Wis. 421; Manufacturers' Bank v. Rugee, 59 Wis. 227. The filing being nugatory, it must, as to the appellants, be treated as though it was never filed. The same is true in respect to the fifing of the chattel mortgage taken by the appellants in the town of Blue Mounds. Had that mortgage been filed in the proper office in the city of Madison at the time it was so filed in the town, it would have, super
Thus it appears that at noon, December 14, 1882, neither the plaintiff nor the appellants had, under the statute, any mortgage or lien upon the property in question which was of any validity as against the other. But it is not essential, under that statute, that the mortgage should be filed at all, in case “ the possession of the mortgaged property be delivered to and retained by the mortgagee.” The statute makes the mortgage invalid unless one or the other is done; but both are not required to make the mortgage valid. It is entirely optional with the parties as to which method they will adopt to make the mortgage effectual. There is no claim that the appellants at any time took possession or attempted to get possession. It is claimed that the plaintiff took possession on the afternoon of December 14, 1882. We think the finding to that effect is sustained by the evidence. It appears, in effect, that Mr. Morris took possession of the building under the bill of sale for the plaintiff in the presence of Mr. Roland, the sheriff, Mr. Weeks, who had attached certain grain in the building, and others; that the next day the keys of the building were delivered to Cowie, of Mount Horeb, for the plaintiff, and an agreement was made between the plaintiff,, the sheriff, and Mr. Roy, that the latter should be in the immediate charge of the building for the plaintiff, and sleep therein nights, and of the grain for the sheriff. Roy and Cowie were agents for the plaintiff.
This obviates the necessity of considering the question so elaborately discussed by counsel, whether the bill of sale
Since the plaintiff’s mortgage contained no power of sale, and the appellants claimed that their mortgage was the superior lien, it was eminently proper that the controversy should be determined by action, and the sale made in pursuance of a decree. This is so whether the plaintiff’s rights were those of a mortgagee or pledgee or both. Jones, Pledges, §§ 640-648; Jones, Ch. Mortg. §§ 707, 711, 743, 756, 758, 821. Such foreclosure is certainly for the interest of all subsequent claimants, and could not in any event work to their prejudice, except in the matter of costs. We find no material error in the record.
By the Cowrt.— The judgment of the circuit court is affirmed.