43 Wis. 583 | Wis. | 1878
The following decision was rendered on the 28 th of February, 1878:
The appellants were undoubtedly entitled to their appeal, whatever its effect upon their codefendants. And, prima faeie at least, the plaintiff below is the adverse party of the statute, respondent here. It is true that there is an adverse interest in the codefendants of the appellants, who are not nominally parties to the appeal. So it was in N. W. Ins. Co. v. Park H. Co., 37 Wis., 125, where we pointed out the difficulty. We cannot amend the statute to meet such a case as that or this. We can only administer it as we find it. The codefendants of the appellants, however, though not parties, are privies to the appeal, because parties to the record below. And they would have been entitled, upon proper application here, to all the rights of practice of respondents. They saw fit, however, to make no such application; appearing to rely on the nominal respondent for the assertion of their rights.
The learned counsel for the respondent appealed to us to reverse the rule of this court in Comstock v. Scales, 7 Wis., 159;
Whether, and in what cases, chattel mortgages containing express covenants for further mortgages to cover after acquired goods, could be specifically enforced, where there are no intervening adverse rights, after the goods have been acquired, is a question we need not consider here. For in this case the original chattel mortgage contained an express covenant for further assurance, to extend the lien to after acquired goods; and a new mortgage was actually executed upon after acquired goods, to one of the mortgagees, to secure a separate debt. And we cannot doubt that the second mortgage enured as additional security to the original mortgage.
We say that the second mortgage was executed to one of the original mortgagees. The mortgage secured three promissory notes, maturing at different times; the appellants holding the first in order of maturity, their codefendants the second, and the respondent the third. So these parties were all mortgagees in right, with priorities of lien in the order stated. The second mortgage was executed to the appellants, who now claim under it adversely to their co-mortgagees in the' first mortgage.
Although the mortgagees in the first mortgage held the
Whether or not the covenant could have been enforced, the mortgagor was none the less morally bound to perform it. If it were an imperfect obligation, it was none the less an obligation in foro oonsoientice, and the mortgagees had at least a moral right to its fulfillment. It would certainly have been bad faith in the mortgagor to refuse to fulfill it; and it certainly was bad faith in him to give the second mortgage adversely to the first, in violation of his covenant and moral duty. So the mortgagees in the first mortgage were bound, in good faith to each other, to take the second mortgage, if they could obtain it, as additional security to the first. And it certainly was not good faith to their co-mortgagees, for one of the parties to take the second mortgage for a separate debt, adversely to the common interest under the first mortgage.
These parties were entitled in common, under the first mortgage. That gave them at least an imperfect title to a lien on after acquired goods of the mortgagor. And neither of them can be tolerated in acquiring an adverse title against his co-tenants. In the language of Kent, C.: “It is not consistent with good faith, nor with the duty which, the connection of the parties, as claimants of a common subject, created, that one of them should be able, without the consent of the other, to buy in an outstanding title, and appropriate the whole subject to himself, and thus undermine and oust his companion.
It is quite immaterial here, whether the mortgagees in the first mortgage could have obtained the second mortgage-, as further assurance under the first. They certainly might have received it. And it is enough to hold that, on principles universally recognized and applied, one of the mortgagees in the first mortgage cannot, in a court of equity, claim under the second mortgage adversely to the common interest under the first.
The learned counsel for the appellants claimed that his clients were not privies to the covenant in the original mortgage. They claim under that mortgage in this suit, and are bound by all that it contains. Every one is charged with notice of the paper title under which he claims.
We therefore hold that the appellants cannot, in good conscience, appropriate the proceeds of the second mortgage to
Some minor questions were made, which are not properly before us, because there is no bill of exceptions. We have nothing here but the pleadings, the findings of fact, and conclusions of law.
By the Oowrt. — The judgment of the court below is affirmed.
On the 19th of March the appellants filed a motion for a rehearing, and submitted it on the 9th of April. The brief of Winfield Smith, filed in support of the motion, argues that, by former decisions in this state, adhered to in the foregoing opinion, the mortgage as to after-acquired goods created no lien, legal or equitable; that this is equivalent to saying that, whatever might have been the moral duty of the mortgagor, he owed the mortgagee no duty of legal or equitable cognisance, as to such goods; that it follows as a necessary corollary, that if a stranger to the first mortgage, with full notice of its existence and provisions, had taken a mortgage of the after-acquired property, he would have been protected as against the plaintiff; that this is for the reason that courts enforce those rights only which have a basis in law (whether technically called equitable or legal), and refuse to entertain claims based solely on moral obligations; that if appellants could not take a separate mortgage, it must be because of some legal or eqvMable (not merely moral) principle, which applies to them and not to a stranger; and that none of the cases cited in the foregoing opinion, when carefully examined, establish any such principle. Counsel further contended, 1. That the rule of equity asserted in those cases applies only to a claim by cotenants “ to a common subjectf and this means a subject in which they all have a common interest at law or in equity: that the only common subject in the case
The plaintiff’s counsel objected that the motion for a rehearing was not submitted within twenty days after it was filed, as required by rule 20 of this court.
The motion for rehearing is seldom abused, as an opportunity for scolding the court. It can not properly be said that it is so in this case. But the learned counsel who makes the motion, opens his argument with this singular sentence:
“ The series of misfortunes which I have latterly met with at the hands of this court, has shaken my confidence in the result of any effort I may make to convince the court, or to obtain its favorable judgment in any case- where a serious contest is possible.”
The fact may be as stated, though the late volumes of reports do not quite appear to verify it. But the suggestion is not fair either towards the learned counsel himself or towards the court. Por it may be an imputation of failure in the intelligent discharge of duty equally to either. It does not seem to have occurred to the learned counsel that the misfortune of which he complains may be attributable to his clients, or to the work which they give him to do. A great judge once said that great lawyers were frequently unsuccessful; for the reason that, being generally expensive luxuries, they are apt to be employed only in desperate cases. This may be the occasion of the learned counsel’s complaint, and his consolation.
The learned counsel has made an ingenious and interesting argument, presenting the point on which the judgment of this appeal turned, in a light not suggested on the hearing. Had it been then presented, or were it now presented in time, it would be entitled to the careful consideration due to every lawyer-like argument. But unfortunately, as the learned counsel for the respondent objects, it comes too late. And the court has lost jurisdiction to consider it, or to entertain the motion, or to deny it with costs. Pierce v. Kelly, 39 Wis., 568; Diedrich v. Railway Co., 42 id., 274.
It is hoped that the learned counsel will not accept this ruling as a continuation of his series of misfortunes at the hands of the court.
By the Court. — Motion denied without costs.