93 Wis. 107 | Wis. | 1896
Sec. 2316a, S. & B. Ann. Stats., provides as follows: “ No sale of any personal property taken under’ or by virtue of any chattel mortgage, . , . except by consent of the mortgagor, his legal representatives and assigns, shall be made before the expiration of five days froim the time when the same was actually taken; . . . and' during such period such property shall be subject to redemption by payment of the mortgage debt, together with actual and necessary costs and expenses of taking and .keeping the property, incurred at the time of making redemption.” This statute became a part of the contract contained in the mortgage as effectually as if embraced therein. It clearly was designed to prevent a sale of property seized under a chattel mortgage until the expiration of five days, after seizure, with the privilege, however, to the mortgagor, to waive the benefit of the statute. Stevens v. Breen, 75 Wis. 595.
The trial court found, as we understand it, that plaintiff waived the benefit secured to him by the statute, basing-such finding wholly on the provision of the mortgage to the effect that, in case the mortgagee at any time deemed himself insecure, he was empowered and authorized to seize the property and sell the same, with or without notice, at public or private sale. Such provision has been commonly used in chattel mortgages since long anterior to the statute. It does not, by its terms or otherwise, in any way waive the-statutory prohibition and right of redemption within five days after seizure. In the absence of a waiver of such statutory right, the mortgagee, after seizing the property, must-wait till the expiration of five days. Then he may proceed,.
The circumstances of the sale in question are such as to-show conclusively that the purchaser acted with notice that the proceeding was in violation of the statute; that the-mortgagee and such purchaser colluded together to make-such sale wrongfully, for the purpose of cutting off the-mortgagor’s right of redemption; and that the sale was really in the interest of the mortgagee. Hence no title passed to. such purchaser. The mortgagor was therefore-entitled to redeem his property at the time he offered to do so, without regard to such sale. Pettibone v. Perkins, 6 Wis. 616; Herman, Chat. Mortg. § 219.
No claim was made by the mortgagee for any costs or expenses, or that the tender was insufficient. The refusal was placed wholly on the ground that he intended to hold the property till plaintiff paid another debt in no way connected with the mortgage. Therefore, such tender operated effectually to discharge the mortgage.
By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment in accordance with this opinion.
