Ullman v. Duncan, 78 Wis. 213

Ullman v. Duncan

78 Wis. 213 | Wis. | 1890

LyoN, J.

Tbe mortgage executed by Gorton to Dodge covered only the equity of redemption in tbe horses. Tbe legal title thereto Avas in plaintiff by virtue of bis mortgage, and continued in him, as against bis mortgagor, Gor-ton, and tbe defendant as administrator of tbe estate of Dodge, although no affidavit for a renewal of tbe plaintiff’s mortgage Aims filed. Defendant took possession of tbe horses as administrator of Dodge, after tbe time for renewing tbe mortgage bad expired. We cannot understand bow tbe defendant obtained any better right to tbe property *216than Dodge would have obtained had he lived and taken possession thereof at the same time. In either case, such possession would have been taken under Gorton’s mortgage to Dodge, and would have been subject to plaintiff’s legal title, whether he renewed his mortgage or not. If defendant gets a better title to the horses than Dodge would have obtained under the circumstances supposed, it is because there are existing creditors of the estate of Dodge, whom, it is said, the defendant represents. No creditor of Dodge’s estate has any specific lien upon the horses in the hands of defendant, and no such creditor is here asserting any claim to them. The only claimant here is defendant, and his claim must necessarily rest exclusively upon Gorton’s mortgage to his intestate, which we have seen is subordinate to plaintiff’s legal title under his mortgage.

This court had occasion in Manson v. Phoenix Ins. Co. 64 Wis. 26, to construe sec. 2314, R. S., which provides for filing chattel mortgages, and to determine the consequences of a failure to file them. It was there held that “ the only effect of the failure to duly file the mortgages was to render them invalid as against purchasers or mortgagees in good faith, or creditors who had obtained liens upon the insured property by attachment or levy upon execution.” That was a contest between a chattel mortgagee of insured property and creditors of the party insured, the loss, if any, being payable to such mortgagee as his interest might appear. As a matter of course, the same rule applies to a failure to renew a mortgage under sec. 2315. 1 We think *217tbis case comes fairly within the rule of Manson v. Phoenix Ins. Co.

The accuracy of the proposition that the creditors of Dodge’s estate have no lien upon the horses becomes more clear when it is considered that Gorton has the undoubted right to redeem them by paying defendant whatever may be due on his mortgage to Dodge. Also the creditors of Gorton may, by appropriate proceedings, assert the same right. This right is entirely inconsistent with the idea that the creditors of Dodge’s estate have any lien upon the horses.

Moreover, the creditors of Dodge’s estate can have no hen upon the property unless it vested at Dodge’s death. But he died within two years after the filing of plaintiff’s mortgage, at which time it was valid as against them. The creditors are, therefore, in the position of a creditor who seizes mortgaged property on attachment or execution before the time to renew the mortgage has expired, and the time afterwards expires without renewal. This court has held several times that the mortgage ceases to be valid only as against creditors of the mortgagor who acquire a hen upon the property after the time expires to renew the mortgage. The cases which so hold are collated and reaffirmed in the opinion by Mr. Justice Orton in Lowe v. Wing, 56 Wis. 31.

Our conclusion is that the plaintiff is entitled to recover the horses, notwithstanding he failed to renew the mortgage under which he claims them, subject only to the right, either of Gorton or of defendant as administrator of Dodge’s estate, to redeem them from plaintiff’s mortgage by paying the debt it was given to secure.

By the Gowrt.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.