Frisbee v. Langworthy

By the Court, DixoN, C. J. The cases of Cotton vs. Marsh, 3 Wis., 221, and Cotton vs. Watkins, 6 id., 629, must be regarded as having settled the law of this state to be that where an officer by virtue of an execution or attachment against the goods of a mortgagor of personal property levies upon or sells the entire property mortgaged, instead of the interest of the mortgagor, thereby assuming to control and dispose of it regardless of the prior rights of the mortgagee, such levy and sale are illegal acts for which the writ furnishes no justification, and for which the mortgagee may maintain an action. This is of course understood as applying only to cases where the statule has been complied with and the transaction between the mortgagor and mortgagee is otherwise unobjectionable. In the first named case this doctrine is laid down without limit or qualification, and therefore that of the court of appeals of New York, in the cases of Hull vs. Carnly, 1 Kern., 501, and 17 N. Y., 202, cannot be considered as the law here. Such seizure and sale are regarded in the same light as a like seizure and sale of the property of partners, joint owners or tenants in common upon writs or executions against one of them, or of the property of a debtor in the hands of a third person having a specific lien thereon, [378] and fall within the principles of the cases of Wheeler vs. McFarland, 10 Wend., 318 ; Phillips vs. Cook, 24 id., 388 ; Waddell vs. Cook, 2 Hill, 47; Welch vs. Adams, 3 Den., 125; and Mellville vs. Brown, 15 Mass., 82. It is true that in the cases of partners, joint tenants and tenants in common the sheriff may seize the whole property, but he must sell only the share of the partner, or tenant against whom the execution is ; and if he sell the whole he thereby becomes a trespasser ab initio. Phillips vs. Cook, Waddell vs. Cook, and Mellville vs. Brown, supra. But in the case of property subject to a lien where the lien holder is either in, or entitled to the immediate possession of the property, it seems that a levy upon the whole of it, in defiance of his rights is unauthorized by law and a trespass, on account of which he may maintain replevin. This point was directly ruled in the case of Wheeler vs. McFarland, and appears to be the doctrine of this court in the cases above cited. The levy in this case was upon the entire property and not upon the interest of the execution debtor, subject to the rights of the plaintiff as mortgagee, and hence was unauthorized; and being so, no demand of. the goods was necessary in order to enable the plaintiff to maintain his action. The other point upon which the cases of Hull vs. Carnly turned, viz: that the plaintiff had no such right of possession at the time of the alleged injury, as to warrant him in bringing the action, (trespass) may be good law, but it is not applicable to the present case. Here, by the express terms of the mortgage, the plaintiff was authorized to take possession of and sell the property at any time he saw fit, or what is the same thing, at any time he deemed his debt insecure. There the mortgagee had no right of possession until after ■■ default in payment, the time for making which did not arrive until more than three months after the seizure. It is very evident that if by virture of the mortgage in this case the plaintiff [379] had had no right of possession until after condition broken, he could not, at the time this suit was commenced, whatever else might have been his remiedy, have maintained it. Re-plevin is a substitute for trespass and trover, to maintain either of which in addition to his qualified property in the goods, he must have shown either that he had or was entitled to the immediate possession of them. 1 Chitty PI., 168-9. The testimony offered by the defendant for the purpose'of proving that the mortgage as between the mortgagee and the creditors of the mortgagor was fraudulent and void, and that the creditors were entitled to treat the property as the property of the mortgagor, was properly excluded, for the reason that no foundation was laid for such evidence in the pleadings. The answer simply denies the facts alleged in the complaint and contains no averment that Belden, the judgment debtor had as to creditors or others any interest whatever in the property. No proof therefore, except what appeared from the plaintiff’s own showing, that he had an interest as mortgagor subject to the prior rights of the plaintiff, and which as such the defendant might have seized, was admissible. If the defendant had intended to show that the entire property was liable to seizure and sale at the instance of Belden’s creditors he should have alleged in his answer facts showing either that the mortgage was fraudulent and void as to them, or that Belden was the owner of the property. Neither of these things having been done the evidence was properly rejected. The judgment of the circuit court is affirmed.