Klœty v. Delles

LyoN, J. I. Were it necessary to determine whether, in a controversy between the plaintiff and his wife, the conveyance or transfer by him to her of the property in question is valid, and vested in her the title to such property, the rule of law which would control might readily he found in Putnam v. Bicknell, 18 Wis., 333, and in the authorities and cases there cited. But it is not thought necessary to determine that question in this action. The plaintiff, in form at least, conveyed the property in controversy to his wife. He thereby conferred upon her the apparent evidence that she was the owner, and thus held her out to others as the owner of. the property. On the faith of such [489] conveyance, Mr. Turner (who is the real defendant in interest in this action) undertook the business of Mrs. Kloety, taking security in advance on the property for his services and expenses to, be rendered and incurred; and afterwards rendered such services and incurred such expenses for her and in her behalf. Under these circumstances, we think the plaintiff is estopped to deny, as against Mr. Turner (and consequently as against this defendant), that his wife is the owner of the property. A man cannot be allowed thus to deal with his property to the injury of others. If (as in this case) he executes a formal transfer and conveyance of his property to another, and the transferee, holding the most ample evidence of ownership, obtains on the faith thereof the money or services of a third person and pledges the property as security therefor, it would be most unjust to permit the former to assert that his conveyance is invalid,because made to his wife, and thus deprive the pledgee of his security. It is to prevent just such wrongs that the rule of estoppel is constantly applied and enforced by the courts. If A holds out to the public that B is his partner or agent, or the owner of certain property, when in fact he is not, and 0 in good faith deals with B as such, the rule is elementary that, in a controversy between A and 0 involving the validity of such dealing, A is estopped to deny that B is his partner or agent, or the owner of the property, as the case may be. The present case seems a very proper one for the application of the rule. But it may be said that Mr. Turner knew the character of the transaction between the plaintiff and his wife, and if the agreement between them is invalid as a conveyance of the property, he is chargeable with notice of the fact; and hence, that he is not a purchaser or mortgagee in good faith. Concede this for the sake of the argument: still we think it must be held that the plaintiff conferred upon his wife ample authority to deal with the property as her own, and cannot be heard in this action to deny such authority. [490] II. The chattel mortgage described in the answer, by virtue of which the defendant held the property, was not read in evidence, nor was the amount due on the mortgage debt proved. But Mr. Turner testified, without objection, to the execution of the mortgage and the consideration therefor, and that the defendant took possession of the property by his direction in order to obtain payment of the demands it was given to secure. It is entirely immaterial in this action how much is due on the mortgage debt. That question can only arise in a controversy between the parties to the mortgage. In this case it was sufficient to show the existence of the mortgage, and perhaps, also, that some portion of the demand it was given to secure was unpaid. These propositions are established by the proofs; although, had an objection been seasonably made, doubtless the parol testimony of the existence of the mortgage would have been rejected, and the defendant required to produce the instrument itself. The plaintiff, having thus permitted the mortgage to be proved by parol evidence, cannot be heard to object here, for the first time, that the best evidence of the fact was not produced. III. It remains to determine whether the pleadings and proofs support the judgment for the defendant for the value of the property in controversy. The answer sets up Turner’s mortgage interest, and the averment, as we have seen, is supported by the evidence. Had the defendant (who represents Turner) claimed in his answer a return of the property, he would have been entitled to judgment for a return thereof. Not claiming a return of the property, he is entitled to j udgment for its value. It was so ruled in The Farmers’ Loan & Trust Co. v. The Commercial Bank, 15 Wis., 424, which followed and affirmed Pratt v. Donovan, 10 id., 378. These cases are to the effect that a defendant in replevin has an option to go for a return of the property or for its value, and he exercises that option when he answers. If in his answer he claims a return, and prevails in the action on grounds which entitle him thereto, the judgment is for a return; but if he does not thus claim a return, and prevails on the same grounds, judg [491] ment goes for the value of tbe property, or, tlie plaintiff being the general owner and the defendant having only a special interest, for the value of the defendant’s interest therein. Indeed, on the authority of Timp v. Dochkam, 32 Wis., 146, it seems that the same results would follow had the defendant answered a general denial alone. The question of the right of the defendant to judgment for the value of the property, in a case like this, is so fully discussed in the cases above cited that further discussion here is entirely unnecessary. IY. Judgment was rendered against the plaintiff’s surety in the undertaking to obtain delivery of the property, as well as against the plaintiff. The validity of the statute (R. S.,.ch. 140, sec. 51) pursuant to which the judgment was so rendered, was affirmed in Pratt v. Donovan, supra, and the point must be considered as settled. "We find no error disclosed in the record, and must therefore affirm the judgment of the circuit court. BytheOourt. — -Judgment affirmed. RtaN, O. J., took no part.