79 Wis. 450 | Wis. | 1891
There is no claim that Boutelle did not own the property covered by the chattel mortgage at the time it was executed, nor that it was given by him with any intent to hinder, delay, or defraud his creditors. Mrs. M. A. Bradeen is named as the mortgagee, and the mortgage purports to secure notes payable to her- “ or bearer.”
1. Error is assigned because the court allowed the plaintiff to testify that the notes and mortgage were given to secure a loan made by the plaintiff to Boutelle at the time they were executed. There can be no reasonable doubt of the right to prove such consideration by parol. De Voin v. De Voin, 76 Wis. 66; Telford v. Frost, 76 Wis. 172; Stowell v. Eldred, 39 Wis. 614; Northern Nat. Bank v. Lewis, 78 Wis. 475, and cases there cited.
2. It is claimed that, as the notes and mortgage were never in fact delivered to Mrs. Bradeen, named therein, the mortgage never had any legal inception, and was therefore invalid. In support of such claim, the learned counsel for the defendant seems to rely particularly on Welch v. Sackett, 12 Wis. 243. In that case the mortgagor, without any request, assent, or knowledge of his foreign creditor, voluntarily procured a chattel mortgage to be drawn, and then executed the same in favor of such creditor, and thereupon delivered it to the person who drew it, with direction to file it, and notify the creditor; but before the creditor accepted the mortgage, or had any information respecting its execution, the property covered by the mortgage was seized on attachment against the mortgagor; and it was
3. It is claimed that the notes and mortgage were taken by the plaintiff in the name of Mrs. Bradeen, for the purpose of evading the payment of taxes thereon, and hence were void as against public policy. This court has recently considered at some length the nature of contracts void as against public policy. Chippewa Valley da S. R. Co. v. C., St. P., M. & O. R. Co. 75 Wis. 224. One of the tests in determining whether a contract is void, as against public policy, is whether the person seeking to enforce it requires the aid of an illegal transaction to establish his case. Swan
The transaction itself being lawful, the question recurs whether the mere purpose of taking the notes and mortgage in a form better calculated to enable the plaintiff thereafter to escape taxation thereon rendered them void as against subsequent attaching creditors of the mortgagor. In other words, is a legal transaction rendered illegal by reason of a secret purpose of one of the parties to subse-
By the Court.—We find no error in the record. The judgment of the circuit court is affirmed.