Newman v. Tymeson, 13 Wis. 172

Newman v. Tymeson

13 Wis. 172 | Wis. | 1860

By the Court,

DixoN, O. J.

The chattel mortgage executed by Joseph Hewman to the appellant, was not void for uncertainty. It has ever been considered a sufficient description of the property conveyed by a deed or other instrument, to refer in it to another deed or writing, which is accurately pointed out, and which contains a proper description, and say that such is tbe property sold or intended soto be. Such a conveyance is not ambiguous or uncertain, because tbe means of ascertaining tbe true intention of tbe parties are clearly indicated on tbe face of it. Coats vs. Taft, [12 Wis., 388]. As between tbe parties, tbe statute in no way affects or interferes with tbe application of this rule to mort-*174§a§es ^^els. ^ does prescribe tbeir form or tbe manner in which they shall be executed, but leaves those things to be determined upon the principles of the common law. Its object is to provide a public place in which they may be filed for the inspection and information of third persons who may be interested, and to declare the effect of such filing as between them and the parties. It is to enable strangers to obtain a correct knowledge of the transaction ; and, in order that they may do so, it is of course necessary that the mortgage itself, or some other instrument identified by it, and which is to be found in the same office, and open to inspection, should contain a sufficient description of the property conveyed. In this way the question of description is incidentally affected by the statute, but in no other. If the party in quest of information is able, by an examination of the mortgage or the copy of it on file, and an inspection of other mortgages, also on file in the same office, and to which reference is made, to learn all the facts which are usually to be gathered from such instruments, then we think the object of the statute is attained. He is thus fairly, and at the proper place, put in possession of all the means of information which the legislature intended, and it would be too much of. a refinement to permit him to close his eyes to another paper contained in the same files, and to which his attention is directed, and turn away and say that he has not had the opportunities afforded by the law. In this case both mortgages were on file in the proper office at the time the' property in dispute was seized, and there was therefore in this respect no defect.

The point, that the previous mortgage is not mentioned as being orí 'file, is also too technical. It is enough that it is otherwise sufficiently described. Its customary place would be upon the files. The inquirer has but to ask the question, and if it is not there, his investigations are at an end.

The appellant was, by virtue of the mortgage, entitled to the immediate possession of the property, as against all the world, save the mortgagee named in the first mortgage, if still unpaid, and consequently can maintain an action for a taking *175wbicb was not in pursuance of that mortgage, but in defiance of Ms right. Frisbee vs. Langworthy, 11 Wis., 375.

The appellant’s interest, and those of the first mortgagee, are entirely distinct and separate. They are neither joint tenants, nor tenants in common of the property, and must sue separately for injuries to their several interests. The action is properly brought in the plaintiff’s name alone. Welch vs. Sackett, 12 Wis., 243; Hill vs. Gibbs, 5 Hill, 56.

The judgment of the circuit court is reversed, and the cause remanded fox further proceedings according to law.