By the Gourt,
PAINE, J.
In tliis case tbe appellant claims a quantity of railroad cbairs, under railroad mortgages executed by tbe Racine & Mississippi Railroad Company. Tbe case bas once been before this court, and as it appeared that tbe cbairs in question were acquired by tbe railroad company after tbe execution of tbe mortgages, we beld that the plaintiff bad no title, for tbe reason that tbe mortgages contained no language purporting to grant materials which tbe company might thereafter acquire to use in constructing tbe road, except so far as such materials were actually so used and became a part of tbe road itself. Some additional evidence was introduced at tbe second trial, which, tbe counsel for the appellant claims, furnishes new light upon this question, and shows that tbe intention of tbe parties was to grant everything that tbe company then owned or might afterwards acquire. And be claimed that tbe intention of tbe parties should be arrived at, as well by tbe consideration of their situation and tbe general nature and object of railroad mortgages, as of tbe words in tbe instruments. There is no doubt that tbe intention is tbe object to be sought for in construction. And to get at that, tbe situation of tbe parties, and tbe nature and object of their transactions, may be looked at. But it must be borne in mind that it is not tbe business of construction to look outside of the instrument to get at tbe intention of tbe parties, and then carry out that intention whether tbe instrument contains language sufficient to express it or not; but tbe sole duty of construction is, to find out what was meant by tbe language of tbe instrument. And this language must be sufficient, when looked at in tbe light of such facts as tbe court is entitled to consider, to sustain whatever effect is given to tbe instrument. And we can see nothing in tbe additional evidence now before us, which we think ought to change tbe effect before given to tbe mortgages under which tbe appellant claims. [439]*439The counsel was obliged to concede that the language, accurately construed, did not profess to grant materials to be thereafter acquired, any further than they became a part of the road granted, or appurtenant to it, or should be used in operating it. This I think cannot be denied; and so far as the meaning of the language is concerned, I can perhaps add nothing to what I said in the former opinion upon that subject.
Should the general nature and object of the conveyances give to that language any more enlarged meaning ? I am unable to see why it should. The company first mortgaged the eastern division of its road. Notwithstanding this, it still remained necessary for it to have materials for the western division. It was therefore utterly improbable that it intended, in the first, to grant all materials that should be thereafter acquired, and was very natural for it to limit the grant to such materials as should actually become a part of the road granted, or be used in operating it. This being true of the first mortgage, is equally true of the second. For although the first division was mortgaged, it was still in possession of the company, and- they might still need materials for its completion. How can it be said, therefore, that they intended in the second to convey all materials thereafter to be acquired, though such materials might be needed for the first division? It is true here that both divisions were mortgaged to the same corporation, but I cannot see that this fact should have any influence in their construction. If they had been conveyed to different mortgagees I should find it impossible to say which lien, if either, attached to these materials as soon as they were acquired by the company. It seems equally impossible although both mortgages are to one trustee. The company evidently did not intend to annihilate itself, or its capacity to acquire and hold property, and I can see nothing in the nature and objects of the conveyances that should warrant the court in assuming an intention to include in them that to which their language does not extend.
The counsel for the appellant also relied on an estoppel, which he claimed to grow out of the following facts : After [440]*440-¡¡be execution of the mortgages under which the appellant claims, and also after the company had acquired the chairs in question, it executed another mortgage to Jesup & Ray--1 l . i , , , , , , . , J mond, which was express^ declared to be subject to the two prior mortgages to the appellant. As the railroad company had these chairs when this last mortgage was made, so that they were conveyed by that as “ materials,” and as that was made subject to the two prior mortgages to the appellant, it is said that the company and all claiming under it are estop-ped from showing that the two prior mortgages did not include all that was conveyed by the Jesup & Raymond mortgage. Without stopping to inquire whether a prior mortgagee would be in a position to insist upon an estoppel growing out of a recital in a subsequent mortgage to other parties, which had in no degree produced or affected his position, we are clearly of the opinion that there is no estoppel in this case, from the language of the subsequent mortgage itself. It does not say that the mortgages to the Trust Company are prior liens upon all the property “herein described,” but after referring to each of them specifically, says they are prior liens upon all the property “ therein described respectively ” &c. This recital, therefore, does not profess to give those mortgages any more extensive application than they respectively purport to have, and can create no estoppel. If one having ten lots, moi’tgages nine of them, and afterwards gives a mortgage irpon all, subject to the pri- or mortgage upon the lots “ therein described,” this certainly could not extend the prior mortgage to the tenth lot, nor es-top the mortgagor, or any one claiming under him, from showing that the tenth lot was not included in the first mortgage.
The only remaining question necessary to be considered, is as to the form of the judgment taken by the defendant. The judgment was for the value, and not in the alternative, for a return or the value in case a return could not be had. This question was passed upon by this court in the case of Pratt v. Donovan, 10 Wis., 387, in which it was held that a defendant might, under the Code and act of 1854, which was then in force, waive a return and take a judgment for the [441]*441value. Since then, the act of 1854, referred to in that case, has.been repealed in the general revision, leaving the question to depend on the provisions of the Code in relation judgments, which were also therein referred to. It is now t, , , , insisted that the decision in Pratt v. Donovan depended on that act, and that the same conclusion cannot now be sustained. But we are of the opinion that the provisions of the Code in relation to judgments, upon tlie construction of which the decision in Pratt v. Donovan mainly depended, sufficiently recognize the option of defendants in these actions to waive a return and take judgment for the value, where the property has been delivered to the plaintiffs. And that decision sufficiently states the reasons for this conclusion.
The statute makes the alternative judgment in favor of a defendant dependent on the condition that he “claims a return and we can give no effect to this clause except by allowing an option to claim a return or not.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Gourt,
PAINE, J.
In tliis case tbe appellant claims a quantity of railroad cbairs, under railroad mortgages executed by tbe Racine & Mississippi Railroad Company. Tbe case bas once been before this court, and as it appeared that tbe cbairs in question were acquired by tbe railroad company after tbe execution of tbe mortgages, we beld that the plaintiff bad no title, for tbe reason that tbe mortgages contained no language purporting to grant materials which tbe company might thereafter acquire to use in constructing tbe road, except so far as such materials were actually so used and became a part of tbe road itself. Some additional evidence was introduced at tbe second trial, which, tbe counsel for the appellant claims, furnishes new light upon this question, and shows that tbe intention of tbe parties was to grant everything that tbe company then owned or might afterwards acquire. And be claimed that tbe intention of tbe parties should be arrived at, as well by tbe consideration of their situation and tbe general nature and object of railroad mortgages, as of tbe words in tbe instruments. There is no doubt that tbe intention is tbe object to be sought for in construction. And to get at that, tbe situation of tbe parties, and tbe nature and object of their transactions, may be looked at. But it must be borne in mind that it is not tbe business of construction to look outside of the instrument to get at tbe intention of tbe parties, and then carry out that intention whether tbe instrument contains language sufficient to express it or not; but tbe sole duty of construction is, to find out what was meant by tbe language of tbe instrument. And this language must be sufficient, when looked at in tbe light of such facts as tbe court is entitled to consider, to sustain whatever effect is given to tbe instrument. And we can see nothing in tbe additional evidence now before us, which we think ought to change tbe effect before given to tbe mortgages under which tbe appellant claims. [439]*439The counsel was obliged to concede that the language, accurately construed, did not profess to grant materials to be thereafter acquired, any further than they became a part of the road granted, or appurtenant to it, or should be used in operating it. This I think cannot be denied; and so far as the meaning of the language is concerned, I can perhaps add nothing to what I said in the former opinion upon that subject.
Should the general nature and object of the conveyances give to that language any more enlarged meaning ? I am unable to see why it should. The company first mortgaged the eastern division of its road. Notwithstanding this, it still remained necessary for it to have materials for the western division. It was therefore utterly improbable that it intended, in the first, to grant all materials that should be thereafter acquired, and was very natural for it to limit the grant to such materials as should actually become a part of the road granted, or be used in operating it. This being true of the first mortgage, is equally true of the second. For although the first division was mortgaged, it was still in possession of the company, and- they might still need materials for its completion. How can it be said, therefore, that they intended in the second to convey all materials thereafter to be acquired, though such materials might be needed for the first division? It is true here that both divisions were mortgaged to the same corporation, but I cannot see that this fact should have any influence in their construction. If they had been conveyed to different mortgagees I should find it impossible to say which lien, if either, attached to these materials as soon as they were acquired by the company. It seems equally impossible although both mortgages are to one trustee. The company evidently did not intend to annihilate itself, or its capacity to acquire and hold property, and I can see nothing in the nature and objects of the conveyances that should warrant the court in assuming an intention to include in them that to which their language does not extend.
The counsel for the appellant also relied on an estoppel, which he claimed to grow out of the following facts : After [440]*440-¡¡be execution of the mortgages under which the appellant claims, and also after the company had acquired the chairs in question, it executed another mortgage to Jesup & Ray--1 l . i , , , , , , . , J mond, which was express^ declared to be subject to the two prior mortgages to the appellant. As the railroad company had these chairs when this last mortgage was made, so that they were conveyed by that as “ materials,” and as that was made subject to the two prior mortgages to the appellant, it is said that the company and all claiming under it are estop-ped from showing that the two prior mortgages did not include all that was conveyed by the Jesup & Raymond mortgage. Without stopping to inquire whether a prior mortgagee would be in a position to insist upon an estoppel growing out of a recital in a subsequent mortgage to other parties, which had in no degree produced or affected his position, we are clearly of the opinion that there is no estoppel in this case, from the language of the subsequent mortgage itself. It does not say that the mortgages to the Trust Company are prior liens upon all the property “herein described,” but after referring to each of them specifically, says they are prior liens upon all the property “ therein described respectively ” &c. This recital, therefore, does not profess to give those mortgages any more extensive application than they respectively purport to have, and can create no estoppel. If one having ten lots, moi’tgages nine of them, and afterwards gives a mortgage irpon all, subject to the pri- or mortgage upon the lots “ therein described,” this certainly could not extend the prior mortgage to the tenth lot, nor es-top the mortgagor, or any one claiming under him, from showing that the tenth lot was not included in the first mortgage.
The only remaining question necessary to be considered, is as to the form of the judgment taken by the defendant. The judgment was for the value, and not in the alternative, for a return or the value in case a return could not be had. This question was passed upon by this court in the case of Pratt v. Donovan, 10 Wis., 387, in which it was held that a defendant might, under the Code and act of 1854, which was then in force, waive a return and take a judgment for the [441]*441value. Since then, the act of 1854, referred to in that case, has.been repealed in the general revision, leaving the question to depend on the provisions of the Code in relation judgments, which were also therein referred to. It is now t, , , , insisted that the decision in Pratt v. Donovan depended on that act, and that the same conclusion cannot now be sustained. But we are of the opinion that the provisions of the Code in relation to judgments, upon tlie construction of which the decision in Pratt v. Donovan mainly depended, sufficiently recognize the option of defendants in these actions to waive a return and take judgment for the value, where the property has been delivered to the plaintiffs. And that decision sufficiently states the reasons for this conclusion.
The statute makes the alternative judgment in favor of a defendant dependent on the condition that he “claims a return and we can give no effect to this clause except by allowing an option to claim a return or not. Counsel construe it as a description merely of that class of defenses which, if established, would entitle the defendant to a return, as distinguished from those which would not. But it does not seem to us such as would have been used for that purpose. If that had been the design, the legislature would have said that where the defendant succeeded on an answer which would entitle him to a return, the judgment should be in the alternative. The language used seems much more aptly to describe the option which defendants had in such eases, by the law in force at the time the Code was adopted, to waive a return and take judgment for the value, than it does the difference between pleas which entitle him to a return and those which do not. 'And we think there is reason and justice in preserving this option to defendants. The plaintiff has in effect the same option; for although he may' not elect, after having brought his suit to obtain the property, to take a judgment for the value where a return can be had, he might have waived a return before bringing suit, and have sued for the value either in trespass or trover. And where the plaintiff has unjustly taken the defendant’s property into his own possession, even though by the aid of a legal pro-[442]*442ceggj there is no reason why the defendant, if he chooses, should not have the right to compel him to abide by the °f Uis own acts and to pay for the property. ^-n<^ee<^ ^ tnigHt, in many instances, be oppressive to defendants to compel them to receive it back. Thus suppose a contractor has procured certain articles with which to complete his contract, and some plaintiff replevies them and gives the bond necessary to take possession. The litigation may last for years, but the contractor is bound to complete his contract immediately. He provides new articles for that purpose, and afterwards succeeds in the suit Should he be bound then to take back the articles when-he had no longer any use for them ? It seems to me not.
And the fact that plaintiffs might sometimes be compelled to pay for property, and lose it afterwards, is no reason why the defendant should not be entitled to a judgment for the value. If the defendant in replevin had been sued in trespass, he might have been made to pay for the property, and yet some stranger might afterwards have taken it from him on proving a better title than the plaintiff in the trespass suit. This is a risk that all parties have to run. But it affords no reason why the judgment should not be according to the rights of the parties as they are made to appear in the suit. Possession was sufficient evidence of title in the defendant until the plaintiff showed a better title. And if that possession would be sufficient to justify a judgment for a return of the property, it is equally sufficient to justify one for its value, and the defendant’s option to take such an one ought not to be defeated for the purpose of allowing plaintiffs to resort to legal process to get possession of their neighbors’ property with the least possible risk to themselves.
It is true, the statute does not provide what the judgment shall be where the defendant does not claim a return. But as it was well understood that in all eases where a defendant was entitled to a return, the judgment was either for a return or the value, it was left as a necessary implication that where he waived a return the judgment could be only for the value. The statute does not say what the judgment shall be in cases where the defendant succeeds on a plea that does not [443]*443entitle him to a return, as where be simply denies the taking. Yet as the only judgment to which he was ever entitled in such a case was a judgment for costs, the statute seems also to have left that to implication.
We think also that section 11, chap. 182, authorizes the jury to assess the value in all cases where they find that the defendant is entitled to a return, whether he waives the return or not.
The judgment is affirmed, with costs.