Mackey v. Stafford

43 Wis. 653 | Wis. | 1878

Lead Opinion

Orton, J.

On the 25th day of February, 1875, the defendants J. P. Stafford and W. I. Carver’, with their wives, exécuted a mortgage to the plaintiff Mackey, of certain real estate in and about the village of Reedsburg, in Sauk county, to secure the payment of any sums of money that might from time to time be due and owing from them or either of them to the plaintiff; to foreclose which mortgage, this action is brought.

On the 26th day of March, 1875, the defendants, as further and collateral security, executed a chattel mortgage on certain staves, broom handles, stave and broom-handle stock, stave machinery, etc., in and about a mill at La Talle in said county; and on the 3d day of April, 1875, another chattel mortgage, for like purpose, on certain staves and heading, and stave and heading bolts, in and about a mill at Reedsburg. After default in payment by the defendants, the plaintiff, on due notice, sold at public auction the property described in the last named mortgage, on the 25th day of January, 1876, to one F. J. Mackey, the son of the plaintiff, who was the only bidder on the same, for the sum of $4,000; and on the 27th day of January, 1876, the defendants sold to the plaintiff’ the property described in the first named chattel mortgage, for the sum of $4,500, and executed therefor a bill of sale under seal, of that date, in which the purpose of the sale is stated in the following language: “ Whereas, there is more against said property now than the same is now worth, and to avoid any further expense in selling and disposing of the same, now, in consideration of $4,500, to be allowed and indorsed on the claims of J. Mackey against us, we hereby sell,” etc. On the same day, the defendants also sold a,nd conveyed to the plaintiff certain real estate, which formed a part of the mortgaged premises, for the agreed price of $3,000. These several sums, together with the sum of $649.72, realized by the plaintiff on some other collat-erals, were indorsed as payments on the mortgage; and the circuit court computed the amount remaining due upon the mortgage, after deducting these several sums from the sum admitted by the answer to be due upon the mortgage, and rendered judgment accordingly.

The appellants, in their answer, claim that these several sales were colorable only, and as a mere change in the form of the security, and not designed or intended to cut off the right of the defendants to redeem; and pray for an accounting by the plaintiff, and that they may redeem on payment of what remains due upon such accounting.

The answer is made by the defendants J. P. Stafford and wife, the appellants, and the defendant Carver does riot appear. The plaintiff, by replication, denies that said sales were color-able only, and alleges that they were all absolute, in good faith, and for an adequate consideration.

The parol agreements and verbal understandings set up and insisted upon by the appellants as showing that these sales were not absolute, depend upon the testimony of the defendant Stafford almost exclusively, and are most positively denied by the plaintiff. They were followed by a complete change of the possession of the property. The bill of sale in one case recites the purpose to be an absolute sale, and to save the expense of foreclosure.

The suspicious delay of the defendant Stafford in claiming any right of redemption, until informed by legal counsel that he had such right, in the spring of 1877, and the full disclaimer of any such right at all times by the defendant Carver, tend very strongly to show that no such right was reserved. The writings and deeds between the parties must be taken to contain the real contracts, upon the subjects embraced therein, until the contrary is established by the clearest proof (Newton v. Holley, 6 Wis., 604); and this court has well said, in Lake v. Meacham, 13 Wis., 362: “Courts cannot interfere with such contracts when any part of the foundation for the relief rests upon conjecture or mere probability of fact, but the whole must be cleared of reasonable doubt, and be sustained by solid and convincing testimony;” and courts will not adjudge a deed absolute on its face to be a mortgage, without the same degree of proof. McClellan v. Sanford, 26 Wis., 595.

In respect to the public sale- upon the mortgage of the 3d of April, 1875, it was ably urged by the eminent counsel of the appellants, that the sale made to the son of the plaintiff was, under the circumstances, a sale to the plaintiff himself, and continued his mortgage relation to the property, and that he still remained the trustee of the mortgagor, and must account for his future disposition of the property. As we view the effect of the evidence, and especially of the subsequent agreement of April 8, 1876, between the plaintiff and the defendant Stafford, this objection has been fully -waived by the only party who now seeks to set it up. This agreement in writing was a subsequent and independent contract in respect to the property, between the defendant Stafford, individually and the plaintiff, in which its absolute ownership by the plaintiff is admitted and conceded. It commences with the language: “ Whereas said first party [Mackey] is the owner of certain cooperage and broom-handle stock, lately owned by and transferred to said party by J. P. Stafford & Co., and whereas, also, said J. P. Stafford & Co. sold said Machey certain wheel machinery, stave-mill and lands adjacent thereto,” etc. This language operates as a full and complete confirmation of all the sales, apd estops the defendant Stafford from questioning the absolute ownership of the property by the plaintiff, upon which the very agreement itself is based. The defendant Carver does not seek to raise the question, nor ask to redeem.

There appears to be no error in the findings of the circuit court.

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Concurrence Opinion

Ryan, C. J.

I concur in the judgment of this appeal, on the ground that the default of the defendant Carver is conclusive against any right he might have to question the respondent’s absolute title derived under the chattel mortgages, and that any right of the appellant to redeem under the chattel mortgages, or for an account of the amount realized by the respondent from the sale of the mortgaged chattels, is waived by and merged in the agreement of the 8 th of April, which he pleads. These positions of the two mortgagors are quite consistent. They had been partners, and gave the chattel mortgages as such. The one abandons all right under them; and the other takes a new right to himself alone, inconsistent with any right of the partnership to redeem or for an account, upon terms which he fails to fulfill. Both concur, therefore, in extinguishing the right of the partnership to redeem, or to question the respondent’s proceedings under the chattel mortgages. And the appellant establishes no right in himself under the agreement for his separate benefit.

By the Court. — The judgment is affirmed.