Campbell v. Dick

49 N.W. 120, 80 Wis. 42, 1891 Wisc. LEXIS 157

• Court: Wisconsin Supreme Court
• Decided: June 3, 1891
• Status: Published

Opinion

Cassoday, J.

The court found that the mortgage given to the defendants by Jackson, the additions thereto, and the renewal thereof, were each and all made in good faith and to secure a bona fide indebtedness, and prior to the execution of the mortgage to the plaintiffs. There is plenty of evidence to support such findings. This being so, it is manifest that the defendants have a right to all the property actually covered by their mortgage which is superior to any claim of the plaintiffs under their mortgage. One of the questions, therefore, presented is whether the mortgage of the defendants covered the property described in the complaint, or any part of it.

The mortgage of the defendants, as originally given, covered one dark bay team weighing about 2,800 pounds, one of which was ten years old, and the other nine years old, with a white star in his face. The court found that to be the same span of horses described in the complaint, and the undisputed evidence sustains the finding. The same' is true respecting the six sets of logging sleds covered by the mortgage as originally given to the defendants, and which the court found to be the same sleds mentioned in the complaint. The mortgage of the defendants covered seven oxen, described therein as follows: “ Seven oxen — one red, about ten years old, same as bought of E. E. Carline; one light red and one dark red, white and red face, about seven years old, same as bought of Ym. Smith; one yoke of oxen, one dark and white star in face, one spotted white and red, about nine years old, same as bought of Craige; . . . one yoke of brindle cattle, age five years, bought of Olsen.” The mortgage also recited, in effect, that the property described was,.at the time, in the possession of Jackson, that he was the sole owner thereof, and that the same was entirely free from all legal incumbrances. The court found, in eifect, that three of the oxen described in the complaint were covered by the mortgage as originally given to the defendants, and that the other three oxen described in the complaint were in good faith, and to secure a Iona fide indebtedness, added to and included in that mortgage by Jackson in the spring of 1888, and prior to the renewal thereof. There appears to be sufficient evidence to support such findings. Such being the facts, it is very obvious that the plaintiffs have no right, under their mortgage, to any property mentioned in the complaint, as against the defendants.

This renders it unnecessary to consider the questions elaborately discussed by counsel, as to whether the mortgage given to the plaintiffs was void for uncertainty as to the oxen and the sleds, or as to whether it was void by reason of its covering exempt property and not having been signed by Jackson’s wife.

After counsel for the plaintiffs had announced to the court on the trial that the evidence on their part was closed, they offered to prove, in effect, that in 1884 and 1885 the plaintiffs made certain written logging contracts with Jackson, whereby they agreed to advance to him $700 with which to purchase teams, sleds, and supplies to do the job, the title to which was to be and remain in the plaintiffs until the logs had been delivered and the contract completed and the money so advanced had been repaid by Jackson. The court excluded such evidence, and after the defendants rested such evidence was again offered by the plaintiffs in rebuttal, and again excluded. The plaintiffs now assign such rulings as error. The plaintiffs took their mortgage from Jackson on the property in controversy, September 21,1888, to secure the repayment of such ad-vanees. The complaint nowhere alleges that the plaintiffs were the owners of any of the property therein described, unless it be inferentially from the allegations to the effect that the oxen had been purchased by Jackson as their agent. One of the grounds upon which the court excluded the evidence was to the effect that, the plaintiffs having taken the chattel mortgage on the property in question as security for such advances, and having tried their case, and rested, upon the theory that they were entitled to such property under that mortgage, they were in no position to shift their ground, and try the case over again on the theory that Jackson never had any title to the property, but that such title had all the time been in themselves under such contracts. Such rulings seem to have been very proper. Until the plaintiffs closed their testimony, both parties claimed the property under their respective mortgages from Jackson, and consequently the plaintiffs were estopped from shifting their ground of action and retrying the case on the theory that Jackson never had any title, but that the plaintiffs had acquired the same from other parties. Schwallback v. C., M. & St. P. R. Co. 69 Wis. 292; Bond v. Carroll, 71 Wis. 347; Gilliam v. Bird, 49 Am. Dec. 379, and cases cited in the notes; Hamilton v. Frothingham, 71 Mich. 616; Hecock v. Van Dusen, 80 Mich. 359. Especially should that be the rule where, as here, the newly-proposed cause of action thus sought to be proved is not alleged in the complaint.

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