Baierl v. Riesenecker , 201 Wis. 454 ( 1930 )

The following opinion was filed October 8, 1929:

Stevens, J.

The personal property here in question was in the possession of the mortgagors at the time that the defendants’ bill of sale was given. Secs. 241.08 and 241.10 of the Statutes provide: “No mortgage of personal property shall be valid against any other person than the parties thereto unless the possession of the mortgaged property be delivered to and retained by the mortgagee or unless the mortgage or a copy thereof be filed . . : in the office of the clerk of the town, city or village where the mortgagor resides.”

At the time the chattel mortgage here in question was given the mortgagors resided in Milwaukee. The chattel mortgage was not recorded in Milwaukee, but in the town where the personal property was then located. Under the clear mandate of the statute quoted above the chattel mortgage was void as against the claim of the defendants under their bill of sale. Dornbrook v. M. Rumely Co. 120 Wis. 36, 40, 97 N. W. 493.

The fact that the bill of sale recites the existence of this chattel mortgage does not change the situation. “It is settled in this state that unrecorded chattel mortgages have no validity as against subsequent purchasers or mortgagees, even though they have actual notice of them.” Holak v. Southard, 182 Wis. 494, 497, 196 N. W. 769. See, also, First Nat. Bank v. Biederman, 149 Wis. 8, 12, 134 N. W. 1132.

The fact that the parties who gave the chattel mortgage here in question moved into the town in which it was recorded, subsequent to the time that the chattel mortgage was improperly filed and before the bill of sale was given to the defendants, does not render the chattel mortgage valid as against these defendants. “That such was the intention of the legislature seems clear from the history of the statute, and the construction that has heretofore been placed upon it by this court points the same way.” Cappon v. O’Day, 165 Wis. 486, 492, 162 N. W. 655.

The respondents rely upon Howard v. Chase, 104 Mass. 249, 252, which construed a Massachusetts statute relating to the filing of chattel mortgages. The case holds that purchasers who take subject to a chattel mortgage which is not filed in the town where a mortgagor resided stand in the shoes of, and have the same rights as, the mortgagor, and that they “thus come within the exception of the statute which provides that unrecorded mortgages ‘shall not be valid against any person other than the parties thereto.’ ” To hold that the legislature intended to include persons not parties to the chattel mortgage when it used the words “any other person than the parties thereto” seems to carry the judicial function of construction into the field of pure legislation. “There is no room for interpretation or construction here. The words are definite and the meaning certain,— ‘any other person than the parties’ can mean but one thing, and the court is not at liberty to construe it to mean anything else.” First Nat. Bank v. Biederman, 149 Wis. 8, 12, 134 N. W. 1132.

The case does not come within the rule of Nix v. Wiswell, 84 Wis. 334, 340, 54 N. W. 620, for the very obvious reason that the statute there under consideration provided that the chattel mortgage should not be valid against “subsequent purchasers or mortgagees in good faith.” Sec. 241.08 of the Statutes here under consideration makes no such exception to the rule.

“It seems unquestionable that our filing statute makes sharp practice possible and enables one who has full notice of a previously unrecordéd mortgage to purchase the property, or to take a mortgage thereon .to secure a pre-existing debt or one presently created, with the deliberate purpose of cutting off the unrecorded mortgage. The idea of the statute doubtless is that it is better to have the statute certain and effective than it is to leave the question in each case to depend on notice or good faith, and thus afford opportunity for conflicts in oral testimony and offer a reward to active and fertile memories.” First Nat. Bank v. Biederman, 149 Wis. 8, 13. 134 N. W. 1132.

The learned trial judge may have been moved to hold that plaintiffs were entitled to the possession of the property here in question under their chattel mortgage because “the equities are all in favor of the plaintiffs,” to-use his words. The defendants did take their bill of sale with full knowledge of the existence of plaintiffs’ chattel mortgage. But that fact does not change the law as it has been written by the legislature. It is the duty of the courts to enforce the law as written. If the statute works injustice, the' appeal for relief must be made to the legislature and not to the courts.

Plaintiffs’ chattel mortgage was not- filed as required by law. It had no validity against' the defendants, who took the personal projoerty under their bill of sale unaffected by any right, title, or'interest accruing to the plaintiffs by virtue of their chattel mortgage. It follows that in no view of the facts can the plaintiffs recover. The judgment must be reversed, and the cause remanded with directions to dismiss the plaintiffs’ complaint. Holak v. Southard, 182 Wis. 494, 497, 196 N. W. 769.

By the Court. — So^ ordered.

The following opinion was filed April 29, 1930: