Hill v. Merriman

Cassoday, J. It is conceded that thirty-eight acres of the oats had not been sown, or at least were not in existence, when the mortgage filed in May, 1884, was given; and hence that that mortgage was to that extent inoperative. As to whether the balance of the oats were in existence at that time, the evidence was in conflict, and the jury determined the question in favor of the plaintiff. All the mortgages were offered in evidence on the part of the. defendants and received by the court. The defendants also gave evidence to the effect that nothing had been paid on any of the mortgages; that Merrimam was still 486 the owner; and that he took the oats under the mortgages. Subsequently the plaintiff moved to strike out both of the mortgages filed in October, 1884, and Merriman's testimony respecting the indebtedness they were given to secure, on the ground that the notes described in them, respectively, were not offered in evidence, nor their absence accounted for. This motion was granted, and the defendants excepted. This ruling; constitutes the principal error assigned.. The failure to offer the notes in evidence left the defendants without any affirmative direct evidence as to whether they were due at the time the possession was taken under the mortgages. It does appear from the undisputed evidence, however, that prior to that time the plaintiff had sold a part of the mortgaged property and had indicated a purpose of selling more. This would seem to justify Merriman in deeming himself insecure and taking such possession under the clause of the mortgage mentioned, even if reasonable ground therefor were required. But that clause in the mortgage gave him the absolute discretion as to the time and circumstances under which he might exercise such, right, and did not depend upon his having reasonable ground therefor. Huebner v. Koebke, 42 Wis. 319; Cline v. Libby, 46 Wis. 123; Evans v. Graham, 50 Wis. 453. “It is the settled law of this state that the mortgagee of chattels has the legal title to the property before the debt is due; and that he may take immediate possession thereof, unless jby express stipulation the mortgagor is permitted to retain possession.” Appleton Iron Co. v. British Am. Assur. Co. 46 Wis. 23; Manson v. Phœnix Ins. Co. 64 Wis. 28. Neither of these mortgages contains such stipulation. The same rule prevails in other states. Jones, Chat. Mortg. (3d ed.), § 426. The mortgagee being thus prima facie entitled to the possession of the oats as against the mortgagor, the latter cannot, without proof of payment or other extinguish 487 ment of the mortgage, maintain an action of tort in the nature of trover for a conversion of the property. Ibid. This is on the theory that such mortgage vests the legal title and right to the possession of the property in the mortgagee, leaving the mortgagor with a mere equitable title; that is to say, a mere right in equity to redeem from the mortgage. It follows that such mortgagor must show something more than such mere right in equity ta redeem, before he can maintain an action at law for the wrongful conversion against such mortgagee having such legal title and right to the possession. Ibid.; Leach v. Kimball, 34 N. H. 568; Holmes v. Bell, 3 Cush. 322. This court has also sanctioned that principle in holding that “ a mortgagee of chattels, who is authorized by the instrument to take possession if at any time he deems himself insecure, may demand the property at any time, and upon refusal of the mortgagor to deliver it may maintain replevin therefor.” Gage v. Wayland, 67 Wis. 566. Here there is no pretense that the plaintiff ever redeemed from any of the mortgages. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.