| Wis. | Nov 8, 1888
It is conceded that thirty-eight acres of the oats had not been sown, or at least were not in existence, when the mortgage filed in May, 1884, was given; and hence that that mortgage was to that extent inoperative. As to whether the balance of the oats were in existence at that time, the evidence was in conflict, and the jury determined the question in favor of the plaintiff. All the mortgages were offered in evidence on the part of the. defendants and received by the court. The defendants also gave evidence to the effect that nothing had been paid on any of the mortgages; that Merrimam was still
The failure to offer the notes in evidence left the defendants without any affirmative direct evidence as to whether they were due at the time the possession was taken under the mortgages. It does appear from the undisputed evidence, however, that prior to that time the plaintiff had sold a part of the mortgaged property and had indicated a purpose of selling more. This would seem to justify Merriman in deeming himself insecure and taking such possession under the clause of the mortgage mentioned, even if reasonable ground therefor were required. But that clause in the mortgage gave him the absolute discretion as to the time and circumstances under which he might exercise such, right, and did not depend upon his having reasonable ground therefor. Huebner v. Koebke, 42 Wis. 319" court="Wis." date_filed="1877-08-15" href="https://app.midpage.ai/document/huebner-v-koebke-6602304?utm_source=webapp" opinion_id="6602304">42 Wis. 319; Cline v. Libby, 46 Wis. 123" court="Wis." date_filed="1879-01-15" href="https://app.midpage.ai/document/cline-v-libby-6602741?utm_source=webapp" opinion_id="6602741">46 Wis. 123; Evans v. Graham, 50 Wis. 453. “It is the settled law of this state that the mortgagee of chattels has the legal title to the property before the debt is due; and that he may take immediate possession thereof, unless jby express stipulation the mortgagor is permitted to retain possession.” Appleton Iron Co. v. British Am. Assur. Co. 46 Wis. 23" court="Wis." date_filed="1879-01-15" href="https://app.midpage.ai/document/appleton-iron-co-v-british-america-assurance-co-6602733?utm_source=webapp" opinion_id="6602733">46 Wis. 23; Manson v. Phœnix Ins. Co. 64 Wis. 28. Neither of these mortgages contains such stipulation. The same rule prevails in other states. Jones, Chat. Mortg. (3d ed.), § 426. The mortgagee being thus prima facie entitled to the possession of the oats as against the mortgagor, the latter cannot, without proof of payment or other extinguish
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.