Smith v. Waggoner, 50 Wis. 155

Smith v. Waggoner

50 Wis. 155 | Wis. | 1880

OetoN, J".

This is an action of replevin brought by a senior mortgagee against a junior mortgagee of the same property, who had taken possession of and removed a part of it by virtue of his mortgage.

That the senior mortgage was filed in the office of the town clerk of the proper town, and in proper time, were facts specifically found by the jury; and such finding was not excepted to, and therefore, strictly, the question whether it had been duly filed was waived. But objection was taken on the trial to the introduction of the mortgage, on the ground that no sufficient proof of the filing of the mortgage was made by a certified copy of the mortgage and its indorsement of filing; and' the learned counsel of the appellant may have rested upon such objection in good faith, as sufficient to raise the question, without excepting to the finding. It was admitted that no book had ever been kept by the town clerk of that town for *160the entry of chattel mortgages. The statute requires the town clerk “ to file all chattel mortgages when presented, and to enter at the time of filing, in a book properly ruled and kept therefor, the names of all the parties, etc., the date of each mortgage, and the date of filing the same,” etc. (subdivisions 9 and 10, sec. 832, R. S.); and the clerk thereafter holds the custody of the mortgage. Section 2314 defines the filing above required as follows: “Such clerk shall indorse on such mortgage or copy the time of receiving the same;” and defines the custody of the mortgage above given as follows: “and keep the same in his office for the inspection of all persons/” and then defines the entries of the mortgage in a book, above required, as follows: “ Such clerk shall also make the entries as required in subdivision 10 in section 832.” Section 2313 makes the validity of the mortgage depend upon such filing alone, unless the possession of the property is delivered to, and retained by, the mortgagee. These provisions are easily understood, and make the filing of the mortgage and the in-dorsement thereof the principal things to be done as affecting the validity of the mortgage, and notice to all persons interested. The entries to be made in a book are not made essential to the validity of the mortgage or constructive notice of its filing; and therefore the requirement of such entries, by an established rule of construction, must be held to be merely directory, and the failure to make them cannot prejudice the rights of the mortgagee who has done all that the law requires of him to secure the filing of his mortgage by the town clerk. Dikeman v. Puckhafer, 1 Abb. Pr. (N. S.), 32; Dodge v. Potter, 18 Barb., 193. The statutes in respect to the registration of deeds of real estate, and the prerequisite index and other entries in the books kept for such purpose, is essentially different in its provisions; and the authority cited by the learned counsel, of Shove v. Larsen, 22 Wis., 143, is wholly inapplicable.

*161The certificate of the town cleric to the copy of the mortgage and its indorsements appears to be sufficient, and all that the statute requires.

The learned counsel of the appellant contends further, that the machinery of the mill had become fixtures and a part of the realty, and that, therefore, the first mortgage should have been recorded as a real-estate mortgage in order to charge the junior mortgagee with notice. It is true that a prior lien, by mortgage or otherwise, upon the estate, which might include all such fixtures as a part of it, might not be divested or affected in any manner as to such fixtures by a subsequent chattel mortgage upon such fixtures as personal property, by the owner of the estate. Frankland v. Moulton, 5 Wis., 1. And it may be that a subsequent mortgagee of the entire estate, including such fixtures as a part of it, might claim such fixtui’es as exempt from the lien of a prior chattel mortgage upon the fixtures alone, and filed as such in the town cleric’s office, but not recorded as a real-estate mortgage, and of which he had no actual notice. In such cases the claimant is interested in the realty, and stands in relation to it by his mortgage, and has the undoubted right to insist that the fixtures are a part of it.

Rut in this case the junior mortgagee does not claim any interest in the realty, and holds no relation to it, but claims the fixtures as personal property, subject to his chattel mortgage, to be taken possession of, removed and sold as such. His mortgage is a chattel mortgage, and was filed as such, and upon condition broken he takes possession of the fixtures in question as personal property and removes them, and now claims title to them as personal property by virtue of his chattel mortgage. He has, in fact, severed these pretended fixtures from the realty to subject them to sale to satisfy his chattel mortgage, and thus treated them as in every respect personal property. Under such circumstances he has estopped himself from denying that the fixtures in question are per*162sonal property. When all the parties, as, in this case, the owner and the mortgagees, have seen fit to treat what might otherwise he fixtures and part of the realty as personal property, by their agreements, and thus sever them from the freehold and license their removal, the law will consider such fixtures, as between the parties, personal property to all intents and purposes. Smith v. Benson, 1 Hill, 176; Ford v. Cobb, 20 N. Y., 344; Tifft v. Horton, 53 N. Y., 377; Hunt v. Bay State Iron Co., 97 Mass., 279.

It is further contended that the taking of the possession of' the machinery in question by the senior mortgagee, after condition broken, by virtue of his mortgage, and then surrendering the same to the possession and use of the mortgagor, invalidated his mortgage, and that such surrender to, and permission to iise the property for the benefit of, the mortgagor, are conclusive evidence of fraud in the giving of the mortgage; or that such conduct of the senior mortgagee so hindered or delayed the junior mortgagee as to be fraudulent in law. If any such issue had been made by the pleadings or oh the trial, or presented to the jury, such conduct on the part of the senior mortgagee might have been evidence tending to show that his mortgage was given and taken with intent to defraud, as a question of fact. But no such issue was made or found, and the learned counsel of the appellant does not now claim that such conduct has any other bearing than to be conclusive that the mortgage is fraudulent in law and void. If the property, after being so taken possession of by the senior mortgagee, had been surrendered to the mortgagor with instructions “to go on and sell it,” instead of using it, as in this case, it would not amount to fraud in law, and make the mortgage absolutely void, but would be “a fact very proper to be left to the jury in connection with the question of a fraudulent intent.” This was one of the questions, and so decided, in Cotton v. Marsh, 3 Wis., 221.

By the Court. — The judgment of the circuit court is affirmed, with costs.