Huebner v. Koebke

EyÁn, 0. J. , The chattel mortgage contains no other provision for the possession of the articles mortgaged, before maturity of the debt secured, than the clauses that, upon default at maturity, the mortgagee might take possession and sell, and that, if the mortgagee should at any time deem herself insecure, she might in like manner take possession and sell. We can have no doubt that the latter clause operates to vest an absolute discretion in the mortgagee. Says Dixon, 0. J., speaking of a clause in the same words in Frisbee v. Langworthy, 11 Wis., 375: “ 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.” And this construction is affirmed of a clause not materially different, in Welch v. Sackett, 12 Wis., 243. See Cotton v. Marsh, 3 Wis., 221, in which the record shows, although the report does not disclose, that the chattel mortgage contained a clause precisely like that in this case; and also Cotton v. Watkins, 6 Wis., 629. So that the question is not an open one in this court. The learned judge who tried the cause below, did not take the same view. He refused to give this construction to the jury; but charged, in effect, that the mortgagee could act upon the clause only in case she had reasonable ground for deeming herself insecure. That construction rests the right of the mortgagee upon the fact, and not upon her view of the fact; and virtually makes the right dependent on the insecurity of the mortgagee in fact, and not upon her apprehension of her insecurity. That is doing violence to the language and spirit of the clause, as the parties wrote it. As written, it does not import that the mortgagee should act at her peril of the fact, but that she may act upon her apprehension, well or ill founded, of the fact. That was the discretion confided by the mortgagor to the mortgagee. Indeed, when we speak of the fact, we may not be quite accurate; for the insecurity of a debt often rests rather in opinion, in apprehension, in deeming, [322] tlian in. fact. A debt might be insecure, not from present want of security, but by likelihood of its diminution or failure. By the Cowrt.— For this error, the judgment of the court below is reversed, and the cause remanded for a new trial.