100 Wis. 223 | Wis. | 1898
The judgment appealed from was as directed at the foot of the findings, so, notwithstanding a suggestion by respondents’ counsel that there is no valid judgment and the appeal should be dismissed on that ground, no reason is perceived why the case is not properly here for review on the questions presented by appellant. If the statement of expenses incurred by plaintiffs in selling the mortgaged property ought to have been approved by the court before entry of judgment, which was not done, that is a mere irregularity and does not render the judgment void; but if it were otherwise, the appeal cannot be dismissed, for a void judgment is appealable and reversible on that ground. Kidder v. Fay, 60 Wis. 218.
Plaintiffs and D. A. Williams were tenants in common of the property in question at the time the action was commenced, as a legal result of each owning a note secured by one chattel mortgage, and both notes being past due. Each was entitled to the possession of the property as much as the other, and neither was entitled to maintain replevin therefor against his cotenant. It follows necessarily that the delivery of the property by the mortgagor to Williams was not a legal wrong to plaintiffs, and that the finding based thereon, that he and Williams colluded together to injure plaintiffs, is without warrant in the evidence; but if it were otherwise, that is not a ground for the maintenance of an action of replevin by one tenant in common against his cotenant.
The principles involved in what has preceded are supposed
The mortgagees being tenants in common, Williams was the owner of an undivided interest in the property, plaintiffs the owners of such an interest, and neither had a right to sell the interest of the other therein. The action of plaintiffs in so doing, after they obtained possession in the replevin suit, was wrongful, and rendered them liable as wrongdoers. True, it is suggested in Earll v. Stumpf, supra, that if one tenant in common, circumstanced as plaintiffs were, sells mortgaged property for the whole debt, fairly and without fraud, it is probable the only remedy the coten-ant would have would be an action for Ms proportion of the proceeds of the sale; but no such question was before the court or decided, though the obiter remark probably guided the learned trial judge in this case, in shaping the order for judgment as he did. Certainly, it is not the law that one tenant in common can in any way dispose of his cotenant’s interest in the common property without the consent of such cotenant. In case of such a sale the wrongdoer is answerable to the cotenant for his interest in the property, or the wronged cotenant may still claim such interest as a cotenant with the vendee. Jones, Chattel Mortgages, § 49; White v. Osborn, 21 Wend. 76; Tyler v. Taylor, 8 Barb. 585. As stated by Mr. Justice Taylor, in effect, in Farwell v. Warren, supra, where each of several persons owns a note, secured by a chattel mortgage running to such persons jointly, the legal situation of the parties is the same as if each had a mortgage on an undivided interest in the property corresponding to the amount of his claim. The mere fact that the notes are secured by a single mortgage does not make either holder a trustee or agent for another similarly situated to sell the in
It follows from’ what has preceded that defendant’s motion for judgment should have been' granted, the property having been delivered to plaintiffs in the replevin suit, which we hold was not maintainable, even if they had not, pending the action, wrongfully disposed of such property. Defendant did not claim a return by answer, so was entitled to judgment absolute against plaintiffs and their sureties on the replevin bond, for the value of her interest as found by the jury, with interest thereon from the date of the taking in the action, as damages. R. S. 1878, secs. 2888, 2889; Lanyon v. Woodward, 65 Wis. 543; Klœty v. Delles, 45 Wis. 484. The value of the whole property was $700, hence the value of Williams’s interest was such proportion of $700 as the amount due on the note held by defendant bears to the whole amount of the indebtedness secured by the mortgage, or, as we have computed it, $246.27; interest on that sum at the rate of six per cent, per annum from October 19, 1894, should be added as damages, and judgment therefor rendered against plaintiffs, or plaintiffs and their sureties on the replevin bond, at the option of the defendant, with costs taxed in the trial court according to law.
By the Cowt.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment in favor of defendant as indicated in the opinion.
