Welcome v. Mitchell

PiNNey, J. 1. The answer of the defendants was sufficient, within the decisions of this court from the earliest [570] period, to allow them, to give evidence to. show that tbe title of the plaintiff was fraudulent and void as against Hogle’s creditors, and as against the defendants seizing it under valid process for the satisfaction of his debt to Mer-riman, although the answer did not contain any express allegations of its fraudulent character. It was enough for the defendants, as officers, to plead their process, and to allege, as they did, that the property seized by them was, at the time, the property of the debtor in the execution, and liable to seizure and sale under it. Martin v. Watson, 8 Wis. 315; Blakeslee v. Rossman, 44 Wis. 553-555. Some evidence was offered for the purpose of showing fraud in the plaintiff’s title as against Ilogle’s .creditors, and excluded ; but the circuit judge reconsidered the ruling, and decided that such evidence was admissible under the answer, and thereafter received all proper evidence tendered by the defendants on that point. It does not appear that the defendants were prejudiced by the ruling complained of, and under the circumstances we think they cannot maintain their assignment of error in this respect. It is proper to observe, in this connection, that the ■ defendants sought, by their cross-examination of the plaintiff when he was a witness in his own behalf to make out his case, to elicit some evidence to the same effect; but the inquiry was not pertinent to any matter testified to by him on his direct examination, and was not, therefore, properly cross-examination ; and, besides, the defendants had not then entered upon their defense, and it did not then appear that they represented the rights of Merriman as a creditor of Hogle. The ruling of the circuit court sustaining objections to the inquiry as then proposed was manifestly correct. 2. The evidence offered to show that Hogle, the judgment debtor under the execution, after the execution of the mortgages and bill of sale, made statements at variance with his testimony as a witness for the defendants, and [571] which also tended to show that the plaintiff’s title was fraudulent, was so clearly inadmissible as not to require comment. The defendants could not thus impeach their own witness, nor could they give in evidence Hogle’s subsequent declarations to impeach the mortgages and bill of sale theretofore executed. Greenl. Ev. § 444a; Norton v. Kearney, 10 Wis. 443; Bates v. Ableman, 13 Wis. 644; Grant v. Lewis, 14 Wis. 487. 3. The court submitted the question to the jury as to the bona fides of the bill of sale in terms quite as favorable to the defendants as they had a right to ask, and the general charge of the court was quite elaborate, and all exceptions taken to it, in view of the evidence, are untenable. The exception to the refusal of the court to give the four instructions asked by defendants is to the refusal to give them except as given in the general charge, which extends over thirteen printed pages, the requested instructions covering three additional pages. This exception is not sufficiently specific and certain. To ascertain whether there is any ground for it requires a careful and critical comparison in all particulars of the requested instructions with the entire charge. The exception is clearly unavailing. The office of an exception is to point out the ruling or decision excepted to with clearness and common certainty. 4. The objection to the plaintiff’s title to a part of the property in question, that it was derived by a private sale from the mortgagee under one of the chattel mortgages, without previous notice given thereof, contrary to the provisions of ch. 294, Laws of 1887, and is therefore void, is not well taken. This statute was designed for the protection of the mortgagor, and he may waive the benefit of the statute or elect not to claim it. Stevens v. Breen, 75 Wis. 600. Upon the questions of fact involved, there being a conflict of evidence and sufficient evidence to support the ver572 diet, it cannot now be disturbed. We do not perceive any error in the case of which the defendants can complain. By the Court.— The judgment of the circuit court is affirmed.