Cline v. Libby , 46 Wis. 123 ( 1879 )

Oole, J.

The injunctional order in this case seems obnoxious to the objection taken to it by defendant’s counsel, of being a violation of the rights of the mortgagee under the mortgages, and really an attempt on the part of the learned circuit court rather to make a new contract for the parties than to enforce the one which they themselves had made. It is axiomatic in the law, that courts have no authority to make contracts for parties which will accord with judicial notions of fitness and propriety. Gibson, C. J., in Bash v. Bash, 9 Pa. St., 260. By the several mortgages, the mortgagee had the right, at any time when she might deem herself insecure, to talie possession of the mortgaged property, and sell the same at public or private sale to pay tbe notes. This was the stipulation of the parties. In Huebner v. Koebke, 42 Wis., 319, this court had occasion to place a construction on such a clause in a chattel mortgage. It held that it vested an absolute discretion in the mortgagee to take possession of the property when he might deem himself insecure, and that the exercise of this right did not depend upon the fact that the mortgagee had reasonable ground for deeming himself insecure. In the order, the circuit court utterly ignored or annulled that clause in the mortgages, by enjoining the defendant from interfering in any manner with the mortgaged property. The order contains other conditions which we deem equally unauthorized, in respect to additional security tendered by the plaintiff; and also in regard to the plaintiff’s making an inventory of the mortgaged property, and paying over one-fourth of the proceeds of the sales thereof to the Bank of New London, to be applied on the notes as they became due. It is true, the plaintiff does not complain of these conditions; but the defendant may well object to such a disposition of the mortgaged property. For she was entitled to the possession of that property whenever she should deem herself insecure. She was proceeding to exercise the right of taking possession, when she was enjoined.

It is claimed, however, that it was a proper exercise of the jurisdiction of a court of equity to restrain the defendant from asserting this legal right. The case of Williamson v. New Albany, etc., Railroad Co., 1 Biss., 198, and other authorities, are cited in support of this position, and to the point that a court of equity will not enforce penalties but relieve against them. It is certainly familiar doctrine, that equity will relieve against penalties and forfeitures; but it has no application to the case at bar. In Williamson v. Railroad Co., Mr. Justice McLean declined, on the application of the trustee, to appoint a receiver of the railroad property in a foreclosure suit for default of payment of interest, holding that the appointment of a receiver in such a case was not a matter of course, but rested in the sound discretion of the court. And it was while considering that question, that Judge McLean makes the remark quoted in the brief of plaintiff’s counsel, to the .effect that “where there is a hard and unconscionable contract, a court of equity will withhold its aid, and leave the party to his remedy at law.” But there is a marked distinction between that case and the one before us. ' Here, the mortgagee is not seeking the aid of a court of equity to enforce the contract; nor is there any ground for saying that the clause in the mortgage in regard to the defendant’s taking possession of the property when she deemed herself insecure, is a hard of unconscionable agreement. The execution of a chattel mortgage vests in the mortgagee the legal title, subject to be defeated by the performance of the condition. The right of possession ordinarily follows that of property, and both would pass under the transfer, in the absence of any express or implied agreement for the retention of the property by the mortgagor. Hall v. Sampson, 35 N. Y., 274. And, except as against the parties thereto, our statute makes the mortgage invalid, unless possession of the mortgaged property be delivered to and retained by the mortgagee, or the mortgage or a copy thereof be filed in the proper office. Tay. Stats., ch. 107, § 9. ■ "Where the mortgagor had the right to retain possession for a stipulated period, it was held, in Ford v. Ransom, 8 Abb. Pr. (N. S.), 416, that he might, by an injunction, prevent the mortgagee from taking possession before the expiration of the time limited. But we have not been referred to any case where an injunction was granted to restrain the mortgagee from asserting his possessory right under a clause in the mortgage like the one in question.

The order appealed from must be reversed, and the cause remanded with directions to dismiss the complaint.

By the Court. — So ordered.