Harrington v. Brittan , 23 Wis. 541 ( 1868 )

Cole, J.

We see nothing in this record which would warrant a reversal .of the judgment. A number of exceptions were taken on the part of the defendant to the rulings of the court on the trial, but we deem them all untenable. The court gave several instructions asked by the defendant in the precise language in which they were drawn. The fifth instruction was slightly modified by the .court, but the correction was so obviously proper that it needs not a word of comment. The second and third instructions asked and refused are based upon the proposition, that, if the agreement was that the mortgaged property was to remain in the possession of the mortgagor, such an arrangement would render the instrument void as to creditors. But this is a mistake. All the chattel mortgages were placed upon file in the proper office from time to time as they were executed. This obviated the necessity for a change of possession. Sec. 9, chap. 107, R. S. In effect the same error was embodied in'the sixth instruction asked and refused — that if Darrow was entitled to the possession of the piano-forte at the time it was seized on the execution against him, then the plaintiff could not recover.

The ninth instruction was clearly erroneous. That was, in substance, that if Darrow acted as the agent or servant of Mrs. Matteson by receiving the chattel mortgage and carrying the same to the clerk’s office, this would constitute no delivery of the mortgage to the plaintiff, or to any one else for her benefit. The mortgagor might undoubtedly act as the agent of the mortgagee in placing the mortgage on Me. Sergeant v. Solberg, 22 Wis. 132. The instruction assumes that Mrs. Matteson could not constitute him her agent for that purpose. , The court had previously instructed the jury, that if Darrow executed the mortgage and placed it on file without the knowledge or direction of Mrs. Matteson, this would not constitute a delivery, and that the instrument would not be valid as to a creditor of Darrow who attached the mortgaged property before Mrs. Matteson had accepted and ratified the acts of Darrow. But it was certainly competent for Mrs. Matteson to make Darrow her agent to file the mortgage.

By the tenth instruction the court was asked to direct the jury, that, if there was an arrangement between Darrow and Mrs. Matteson that the horses were not to be meddled with until the piano failed to pay the debt, such arrangement would render the mortgage void. In other words, that any arrangement between the mortgagor and mortgagee of personal property, as to the order of sale, and as to what property shall first be sold to satisfy the debt, renders the instrument invalid as to creditors. But what principle of law or morals forbids such an arrangement ? In what manner can creditors be injured or prejudiced by it ? It is merely saying what property shall be first sold upon the mortgage. That is all such an arrangement amounts to.

The last instruction asked and refused was, if the jury found that there was a bequest, made by Mrs. Matteson to Darrow of $100, such a bequest would operate as an extinguishment pro tanto of the debt from Darrow to her estate. “A gift of a legacy may certainly be so framed as to be a l’elease of a demand, but it must be clear.” Wilmot v. Woodhouse, 4 Barb. Ch. 230. There is, however, nothing in the bequest made by Mrs. Matteson to Darrow, w;hich shows an intention on her part to surrender or release any portion of this mortgage debt. The note given to her by Dan’ow is found among the testator’s property, uncanceled in whole or in part, and there is a total absence of evidence indicating an intention on the part of Mrs. Matteson to release the debt. 2 Williams on Ex’rs, 1119.

We think these remarks dispose of the material questions arising upon the record.

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