Nichols v. Webster

1 Chand. 203 | Wis. | 1849

WhitoN, J.

The question in this case arises upon my decision in ruling out the chattel mortgage of the goods alleged to have been taken by the plaintiffs in error, and for the taking of which the suit is brought. The plea- was the general issue, and when the mortgage was offered in evidence by the plaintiffs in error, the defendants below, I was of opinion that the plaintiff below, the mortgagor, had a legal interest remaining in the goods mortgaged, after a breach of the condition, according to the stipulation contained in tbe mortgage; tbat Nichols, the mortgagee, should pay over to Webster, the mortgagor, the proceeds arising from the sale of the mortgaged goods, after paying the mortgage debt, expenses of sale, etc., and consequently rejected the evidence. But I am now of the opinion that the mortgagee was not obliged to foreclose the mortgage by a sale of the goods, and that his right to them was not at all affected by the clause of the moitgage in question. It follows, then, that when the condition of the mortgage was broken, by the neglect of Webster to pay the money at the time stipulated, the goods became the property of Nichols, the mortgagee, Webster, the mortgagor, having no interest in them, except an equity of redemption. The cases cited by the counsel for the plaintiffs in error clearly maintain this position, of the correctness of which there was indeed no doubt, if the mortgage was not affected by the clause above alluded to. It is clear, that in actions of trespass the defendant may show, under the plea of the general issue, that he is the owner of the property. 2 Green! Ev. 625. It follows, then, that the mortgage in question (showing, as it did, that the condition had been broken when the goods were taken, and consequently that the mortgagee, the defendant below, was the absolute owner in law of the property) should have been received and read in evidence to the jury.

It was rejected, and for that reason the judgment which was rendered against the defendants must be reversed.

Judgment of the circuit court reversed, with costs.