James Music Co. v. Hankwitz

118 N.W. 806, 137 Wis. 302, 1908 Wisc. LEXIS 305

• Court: Wisconsin Supreme Court
• Decided: December 15, 1908
• Status: Published

Opinion

WiNSLow, O. J.

No statement of the facts in this case is ■deemed necessary. But one question is involved which we deem it necessary to consider, viz.: Can the owner of an un-filed chattel mortgage, after condition broken, successfully replevin the mortgaged property from a person who has purchased the same at sheriff’s sale upon an execution issued •on a judgment against one other than the chattel mortgagor? In simpler form, the question is whether such a mortgagee -can replevin the property from a trespasser. This question must be answered in the affirmative. A chattel mortgagee •after condition broken has the legal title to the mortgaged property and the right to the possession thereof. Klinkert v. Fulton S. & M. Co. 113 Wis. 493, 89 N. W. 507.

It is true that sec. 2313, Stats. (1898), provides that a ■chattel mortgage shall not be valid as “against any other person than the parties thereto,” unless the possession of the property be delivered to and retained by the mortgagee, or the mortgage be filed in the office of the proper town, city, or village clerk, as prescribed in sec. 2314, Stats. (1898). Under this section it is contended that the owner of an un-filed chattel mortgage cannot recover the property from a mere trespasser. This contention, however, must be rej ected under the authority of Kimball v. Post, 44 Wis. 471, where it was held that the same language in sec. 2317, Stats. (1898), with reference to conditional sales of personal property, was intended only for the protection of those claiming the property by purchase, assignment, or otherwise from the vendee in possession, and not for the protection of mere trespassers.

Following this decision the judgment must be affirmed.

By the Gourt. — It is so ordered.