Ryan Drug Co. v. Hvambsahl

PiNNEY, J. 1. The chattel mortgage dated June 29,1892, and not filed in the city clerk’s office until August 22, 1893, was void as against the plaintiff’s claim for all goods sold by it to the defendant in the meantime. The statute (sec. 2313, R. S.) declares that “no mortgage of personal property shah be valid against any other person than the parties thereto, unless the possession of the mortgaged property be delivered to and retained by the mortgagee, or unless the mortgage or a copy thereof be filed ” as provided in sec. 2314, except, etc. In this case there was no delivery or change of possession of the mortgaged property. The contention that the charge of a fraudulent transfer or disposition of the defendant’s stock of goods is not made out in this case unless a fraudulent intent in fact is shown, cannot be maintained. As the mortgage was void in law as against all others than the parties thereto, no fraudulent intent need be shown. While valid as between the parties, the law, where the statute has not been complied with, conclusively imputes to the mortgage a fraudulent character as to creditors; and no evidence of good faith in fact, however clear or satisfactory, can rescue it from the condemnation of the statute. Blakeslee v. Rossman, 43 Wis. 116, 123, 126, 127; Anderson v. Patterson, 64 Wis. 557. The statute makes no exception such as the argument would imply, and the court cannot [65] make any. As was said in Blakeslee v. Rossman, supra: “ Parol evidence can make it neither better nor worse. The intent does not enter into the question. Fraud in fact goes to avoid an instrument otherwise valid. But intent, bona Jide or mala Jide, is immaterial to an instrument per se fraudulent and void in law. . . . The judgment of the law goes upon construction of the paper, without inquiry of fact outside of the paper. As against creditors, the paper is void from the beginning and remains void always.” After having been filed, it would be valid of course as.to subsequent creditors; but, as to creditors who became such intermediate its execution and the filing, the inference of fraud is •conclusive. 2. As the statute makes a chattel mortgage not filed void ■as against persons other than the parties to the same, actual notice of the existence of the mortgage to a creditor will not debar, him from taking such property by attachment or ■execution. It has been expressly held in this state that a subsequent purchaser, with actual knowledge of its existence, acquires a valid title. Parroski v. Goldberg, 80 Wis. 339. And it has been so held in other states having statutes on the subject of filing chattel mortgages the same as our own, both as to creditors and subsequent purchasers. Jones, Chat. Mortg. § 314; Long v. Cockern, 128 Ill. 29; Bingham v. Jordan, 1 Allen, 373; Travis v. Bishop, 13 Met. 304; Gassner v. Patterson, 23 Cal. 299, 301; Garland v. Plummer, 72 Me. 397, 400; Rawlings v. Bean, 80 Mo. 614; Lockwood v. Slevin, 26 Ind. 125; Farmers' L. & T. Co. v. Hendrickson, 25 Barb. 484; Stevens v. B. & N. Y. C. R. Co. 31 Barb. 612. The attachment statute gives the remedy in all cases where the debtor has fraudulently assigned, etc., or is about to so assign, his property, or any part thereof, with intent to defraud his creditors. Notice of the existence of the mortgage is notice only of what the law, without qualification material to this case, declares void as against all persons other [66] than the parties thereto. It is not necessary,, therefore, to consider other grounds relied on to sustain the attachment,, nor whether Hall was an agent with such power’s and duties-as would render notice to him notice to the plaintiff, his-principal. • The traverse of the allegations of' the affidavit as-to the amount of the plaintiff’s debt and whether it was-then due, was not authorized by the statute,, and did not raise any material issue. Littlejohn v. Jacobs, 66 Wis. 600. We hold, therefore, that the plaintiff might sustain its. attachment upon proof of the invalid and fraudulent mortgage, although it had notice of its existence when it sold the goods in question; and therefore the order appealed from is-correct and must be affirmed. By the Court.— The order of the circuit court is affirmed..