Evans v. Williams

Oeton, J.

The firm of 0. Ladewig & Co., consisting of Tena Ladewig and Louis G. Leitzke, merchants in possession of a general stock of goods, executed to the plaintiff a chattel mortgage on the same to secure the note of said firm to him of $227.50. There was no change of possession of said stock, but the same was left in the possession of said mortgagors, who continued their business in the usual course of trade, the same as before the mortgage was given, making sales of the stock for cash and upon credit, and converted and- used and applied the proceeds of their sales to their own use, and to the payment of their other creditors, and to their own living and support, and exchanged goods for produce as they saw fit and proper, and kept no account of their sales and doings, and were not required to do so by the plaintiff as the mortgagee; and they conducted their business generally and in the sale of said stock of goods as if no mortgage had been given. After the said mortgage was executed, the defendant, as sheriff, by his deputy, seized and attached said stock of goods on several writs of attachment in favor of several creditors of said firm, and had the same in his possession when the plaintiff brought this action of 'replevin to obtain the possession of the same, and thereby obtained possession of a large part thereof, by virtue of his said mortgage.

• These facts were found by the circuit court on the trial of the action, together with the further fact “ that the chattel mortgage aforesaid, made to plaintiff, was fraudulent and void as to the creditors aforesaid of said Tena Ladewig and Louis G. Leitzke, and was given for the purpose of hindering and delaying their creditors.” The court rendered judgment in favor of the defendant for the value of the goods taken by the writ, and from said judgment this appeal is taken.

The questions raised on this appeal aré, first, that the answer does not sufficiently state the facts of the fraud therein alleged to admit of evidence thereof; second, that the findings do not contain the facts of the fraud; third, that the fraud was not proved.

1. The answer alleges “ that said chattel mortgage was fraudulent and void as to the creditors of Tena Ladewig and Louis G. Leitzke, the mortgagors named in said mortgage, and was given for the purpose of delaying and hindering the creditors of said Tena Ladewig and Louis G. Leitzke.” In sec. 2319, E. S., it is provided that when it shall appear in an action against a sheriff to recover the possession or value of personal property that he obtained the possession of such property by virtue of a writ of attachment against the property of a person not a party to such action, from whom the plaintiff claims to have derived his right by a mortgage, and that such.property was taken by the officer from the possession of the defendant in such attachment, “ and it shall be alleged in the answer of the defendant that such mortgage was fraudulent as to the creditors of the mortgagor, then the burden of proof shall be upon the plaintiff to show that such mortgage was given in good faith and to secure an actual indebtedness and the amount thereof.” This answer in respect to the fraud of the mortgage is in the precise language of the statute, and it cast the burden of proving that the mortgage was not fraudulent, but was given in good faith, upon the plaintiff. The evidence of the fraud to be introduced, by the defendant is to rebut the testimony introduced by the plaintiff to show negatively that the mortgage was not fraudulent. This being the issue in such a case, the defendant’s allegation in his answer in the la'nguage of the statute is sufficient to cast the burden of proof of this issue upon the plaintiff; and this is all that the defendant is required to allege. .

2. The findings of the court embrace many facts tending to show fraud in the mortgage; such as the mortgagor continuing in possession of the stock, and selling it for cash and on credit, and exchanging it for other property, and living upon and consuming the proceeds, and generally treating the goods as if not mortgaged and as before the mortgage; and then there is a finding on the issue of fraud, as before stated. It is objected that the findings do not contain the fact that the mortgagees-knew of such treatment of the stock as their own by the mortgagors, and that there was no agreement or understanding at the time the mortgage was given, between the mortgagors and mortgagee, that the mortgagors might so treat the stock as their own. A finding is sufficient that disposes of all the issues in the case (Knox v. Johnston, 26 Wis. 41); and a very general finding may be sufficient if it supports the judgment (Demming v. Weston, 15 Wis. 236). A finding that-all the facts set forth in the complaint or answer are true is sufficient. Catlin v. Henton, 9 Wis. 476. All the issues-in replevin are found, besides the issue “that the mortgage was fraudulent and void as to their creditors, and was given for the purpose of hindering and delaying their creditors.” There was no reguest by the plaintiff that any additional fact should be found. The findings are clearly sufficient to support the judgment. If the allegations of fraud in the answer in the language of the statute were sufficient, it follows that the finding of that issue in the same language ought to be sufficient also. In connection with this question it is proper to refer to the testimony of the said Louis G. Leitzke, one of the mortgagors. He testified that “ the agreement was that I could handle the business, just the same as I did before giving the mortgage.” This evidence would justify the finding of fraud, in connection with the other facts found by the court.

3. The facts of the fraud appear to have been sufficiently proved to justify the finding.

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