Newman v. Tymeson

12 Wis. 448

Opinion

By the Court,

Paine, J.

This was an action to recover the possession of personal property or its value. The plaintiff claimed under a chattel mortgage executed on the 30th of September, 1858, and duly filed in the proper town clerk’s office on the same day. The alleged wrongful taking was on the first day of October thereafter, and this suit was begun on the 7th of the same month. Issue was regularly joined, but the trial was had more than a year after the date and filing of the mortgage. On the trial the plaintiff offered the mortgage in evidence, and it was objected to for the reason that no affidavit had been filed to renew it, as required by sec. 5, chap. 45, R. S. 1858. The court excluded the evidence for that reason.

We think this was erroneous. The section referred to provides that a chattel mortgage, after being properly filed, shall cease to be valid as against the creditors of the mortgagor, or subsequent purchasers or mortgagees in good faith, unless within thirty days next preceding the expiration of the year, the mortgagee shall make and annex to it an affidavit setting forth his interest, &c.

The clear intent of this provision was, that in case of failure to make the affidavit, the mortgage should cease to be valid as against creditors who should thereafter seize it or purchasers who should thereafter purchase; not that such affidavit was necessary to continue the mortgagee’s right of action against a creditor who had previously, and while the mortgage was in full force against Mm, seized it in such, manner as to make him a trespasser. Bates vs. Wilbur, decided at the last term; Meech vs. Patchin, 14 N. Y., 72. The rights of the parties were fixed by the taking, and should have been determined as they were at the commencement of the suit.

The judgment is reversed, with costs, and a new trial awarded.