Van Eps v. Newald , 139 Wis. 129 ( 1909 )

Dodge, J.

The first contention is that there was no evidence to support the finding that the chattel mortgage described in the complaint was ever executed or delivered. There is no exception to this or any other finding embodied in tbe bill of exceptions. Therefore the contention is not tenable. Waiving that obstacle, however, we think the fact is admitted by the pleadings. The complaint alleges the making of “a certain mortgage” dated September 22, 1905, and then describes it. The answer “admits” the making of “a certain mortgage” of the same date and contains no suggestion that it was other than the mortgage described. Admissions in the answer are presumptively referable and responsive to the allegations of the complaint. Defendants cannot admit something which tbe complaint does not allege. It is clear, therefore, that the admission is of the same mortgage which the complaint describes.

Tbe alteration of the note is of no materiality. This is not an action on the note. It is an action to recover the mortgaged property. It is established that the mortgage thereon was executed, delivered, and filed, of which defendant bad full notice when he purchased the property. This established plaintiff’s right to the property to secure an indebtedness to an amount not greater than that named in tbe mortgage. That indebtedness might be proved by parol and was shown to be $865. Upon denial of that right he was entitled to recover the property or its value up to tbe amount of sucb indebtedness. The judgment does not exceed sucb right of recovery. ,

By the Court. — Judgment affirmed.1