68 Wis. 234 | Wis. | 1887
It appears that the firm of Hinman, Moody & Co., on the 5th day of September, 1883, executed a chattel mortgage upon the goods described in the complaint, to the respondent bank, to secure certain promissory notes therein described, and that said mortgage was duly filed in the clerk’s office of the city of Beloit on the 2d day of November thereafter. The said firm thereafter, and- about the 5th day of November, 1883, made- a voluntary assignment for the benefit of their creditors, of all of their property, including the goods which had been so mortgaged to said bank, to the appellant. The said goods, being found in the possession of said bank, were demanded by the appellant ■as such assignee, and upon said bank’s refusal to deliver the same the appellant brought this action of replevin to recover the possession thereof. A jury having been waived, the circuit court found all the issues in favor of the defendants, and judgment was entered accordingly, and this appeal is taken therefrom.
The two main grounds assumed and sought to be maintained by the appellant upon the trial of this action were (1) that the goods described in the complaint and taken by the writ were not those described in and conveyed by said mortgage; and (2) that if they were the same goods the said bank could not withhold the same from the appellant as such assignee, because said mortgage was void for the reason that it was made by said Hinman, Moody & Co., with intent to hinder, delay, or defraud their creditors; and these grounds, on the merits, are urged in this court to reverse the judgment.
The first ground rests upon the uncertain and insufficient •description and identity of the goods mortgaged to and taken possession of by the said bank; and it is claimed by the learned counsel of the appellant that the said bank, as such mortgagee, has shown no right to said goods. The description of the goods in the mortgage is as follows:
The following findings of the circuit court are pertinent to the. question of the identity of the goods: “ Second. That at the time of making said assignment, and before it was made, the goods and chattels mentioned in the complaint herein were included in and covered by a certain chattel mortgage duly executed by said firm of Hinman, Moody & Co., on the 5th day of September, 1883, and bearing date September 5, 1883, and which was duly filed in the office of the clerk of the city of Beloit on the 2d day of November, 1883, at 3 25-60 o’clock in the afternoon of that day.” “ Seventh. That shortly prior to the time of giving the mortgage, Moses S. Hinman, the managing partner of said firm at Beloit, pointed out to G. B. Salmon, the cashier and one of the stockholders of the Citizens' National Bank of Beloit, the property intended to be covered by said mortgage, and at the request of Salmon furnished a memorandum of the same property thus pointed out to be included in the mortgage, and which was afterwards included in the
Tbe testimony was amply sufficient to sustain these findings. Tbe appellant, Frost, tbe officer, Allen, and tbe cashier, Salmon, concurred in testifying that tbe property was in tbe possession of the bank; and Salmon and Ilinman testified that it was pointed out by Ilinman as being covered by tbe mortgage before tbe execution and delivery of tbe assignment. Tbe appellant, as such assignee, on tbe Gtb day of November thereafter, served upon tbe officers of said bank a written demand for tbe bank to surrender such possession to him “ of all and singular tbe property mentioned in a certain mortgage dated September 5, 1883, and which purports to have been executed by said Ilinman, Moody & Go., to tbe Citizens' National Bernik of Beloit, Wis.,” preparatory to tbe commencement of this action. As between tbe parties to tbe mortgage, these findings, so sustained by tbe evidence, dispose of tbe question of tbe certainty of description and identity of tbe property, for their legal effect is that said firm of Ilinman, Moody & Co. specially identified, turned out and delivered to tbe bank as tbe mortgagee tbe said property as that which was described in and conveyed by tbe mortgage, and that tbe bank took full possession thereof, by tbe consent of tbe said mortgagors, before tbe execution of said assignment. This cures any insufficiency or want of certainty of description of tbe property.
This identical question, and upon very similar evidence, was so decided by this court in Morrow v. Reed, 30 Wis. 81. There one of tbe mortgagors went with tbe mortgagee to the place where it was claimed tbe logs were situated, and pointed out to him those that were covered by the mortgage, and as far as practicable delivered them to him. Tbe
This leaves the appellant, as such assignee, in the attitude of seeking to recover in this action the possession of the property or its value, from the bank as the mortgagee in possession under its mortgage from the assignors, on the sole ground that said mortgage is void because it was made by Hinrnan, Moody & Co., as the mortgagors, with the intent to hinder, delay, or .defraud their creditors." It is only so far as the appellant, as such assignee, may represent the other creditors of the assignors that he can question the validity of the mortgage on that ground; and it is in their right and interest only that this action is brought or could be maintained; for the mortgagors themselves could not thus question their mortgage. Dietrich v. Koch, 35 Wis. 618. In view of the
. So far, then, as the circuit court had cognizance of this action, we find no error in the record, and it not having bad cognizance of the question whether the mortgage was given with intent to hinder, delay, or defraud creditors, we abstain from expressing any opinion upon it.
By the Court.— The judgment of the circuit court is affirmed.