134 Wis. 81 | Wis. | 1907
The only mooted question deemed necessary of consideration is that of the delivery and retention of possession of the mortgaged property made requisite to the validity of a chattel mortgage in absence of filing by sec. 2310, Stats. (1898). Upon this question there is no finding by the trial court; the findings signed being in the terms of a statutory verdict in replevin, and no more than mere conclusions of law, except as to the value of the property and the amount of damages. Conceding, however, that the accompanying opinion of the trial judge indicates his conclusion that such delivery had taken place, we cannot view such conclusion as at all binding upon this court, for two reasons: First, because the evidence on the subject is uncontradicted and, we are satisfied, justifies but one inference; and, secondly, because of the misapprehension of the law governing and defining the possession required by this statute. In his opinion the court declared that there need be only such delivery of possession that' the plaintiff acquired the right to control the property, and that if the property were destroyed or lost the loss would fall on the plaintiff, as described in Morrow v. Reed, 30 Wis. 81. In that case the property under consideration was saw logs piled on the shores of Green Bay, with no form of possession or control ostensibly exercised over them other than such as resulted from actual title, and the transaction between mortgagor and mortgagee consisted merely in the pointing out of the logs as those mortgaged and the declaration of delivery followed by continued location of the logs at the same place. This in itself would constitute an obvious distinction from a case like the present, where
In the present case it must be borne in mind that the pos
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for defendant according to law.