Bertschy v. Bank of Sheboygan

Oassoday, J. It is contended that by the bill of sale dated February 9, 1881, John Bertschy sold to the defendant about 2,987 bushels of clover seed, then stored with Rosenbaum Bros, in Chicago, which they sold as the property of the defendant for $17,959.78 net, and that John Bertschy’s indebtedness to the bank was thereby paid and extinguished to that amount. It is true that that instrument was in the form of a bill of sale, but no price was therein fixed upon the clover seed. It recited a “ consideration of one dollar and other valuable consideration to” John Bertschy “in hand paid,” but it is manifest from the evidence that there was no consideration except his indebtedness to the bank. Though in the form of a bill of sale, yet, as the court finds, it was given as mere security for the indebtedness mentioned; in other words, it was in legal effect nothing more than a chattel mortgage. Since, at the time the bill of sale was given, the clover seed was in the possession of Rosenbaum Bros, in Chicago, it was manifestly subject to any claim or lien they had thereon. It appears that the bill of sale was unknown to Rosenbaum Bros, until after they had, by direction from John Bertschy, sold the clover seed and applied the proceeds thereof upon his indebtedness to them. There is nothing to indicate that the bill of sale in any way affected their right to sell the clover seed. There is no pretense that the defendant ever authorized or had any knowledge of such sale or application until about October 21, 1881. The power of- attorney hereinafter mentioned was given immediately after the acquisition of such knowledge. It is true, the defendant, with the consent [480] and at tbe request of John Bertschy, brought suit in the federal court against Rosenbaum Bros, to recover the proceeds of the sale of the clover seed, on the theory, as it is said, that Rosenbaum Bros, had made such sale and retained such proceeds as margins jjut up by John Bertschy on his illegal deals in futures on the board of trade in Chicago. It is enough to know, as was held by the trial court, that no part of such proceeds ever came to, or was ever in any manner realized by, the defendant; and the suit in the federal court was finally dismissed on the ground that no recovery could be had, upon the principles held by the supreme court of the United States in Rountree v. Smith, 108 U. S. 269, and later cases. Since the bill of sale was in legal effect a mere chattel mortgage, it is evident that the mortgagor could not thus convert the clover seed to his own use, and at the same time have the amount of its value applied as so much payment and extinguishment of his indebtedness to the defendant. We must hold that the defendant is in no way chargeable for the proceeds of the sale of the clover seed or any part thereof. The evidence seems to have justified the trial court in holding that the value of the lands conveyed to the defendant March 6, 1884, did not then exceed the amount which John Bertschy was then indebted to the defendant. John Bertschy lived nearly three years after that conveyance, and jret it does not appear that he took any exception to it; and this suit was not coimnenced until nearly eight years after that deed. It is contended that such deed to the defendant was subject to the plaintiffs right of dower therein, or, rather, that by taking the deed the defendant became liable to her for the money value of her dower therein at the time of making the conveyance, and interest since. The statute expressly authorized the plaintiff, as the wife of John Bertschy, to bar her dower in'the lands thus conveyedby joining Avith her husband . . . in a con [481] veyance thereof, duly executed and acknowledged by her in the manner” therein prescribed; and provided that .“the joinder of her name as grantor with her husband in any •deed so executed by her shall be sufficient to bar her dower, without any other words therein.” R. -S. sec. 2222. So the .statute expressly provided that the plaintiff, as the wife of John Bertschy, might, “ by letter of attorney, executed and ■acknowledged in the manner prescribed ” therein, “ authorize and empower her attorney to bar. her dower, or to convey any other interest in any real estate, in the same manner and in the same cases as she might personally do.” Sec. 2223. It was certainly competent, under these statutes, for the plaintiff to authorize and empower Williams, as her attorney in fact, to bar her dower as she did. No question is made but what the plaintiff and her husband duly executed, witnessed, and acknowledged that power of attorney ■as prescribed by the statutes, and that the same was duly recorded prior to the conveyance. The criticism is that the words, “ we or either of us are seised/’ in it, simply authorized the attorney to convey such lands as Mr. and Mrs. Bertschy were seised of as joint tenants or tenants in common, or which they owned in severalty, but that it did not authorize him to bar the plaintiff’s dower in her husband’s lands, because it does not expressly so state. But the language of sec. 2222, R. S., quoted, makes it unnecessary for the deed to so state in order to bar her dower where she joins with him in giving a conveyance; and under sec. 2223 we do not think such express statement in such power of attorney is any more essential. Gee v. Bolton, 17 Wis. 604. The very fact that the instrument' provides, in effect, that after paying and satisfying all mortgage debts on the premises the attorney should turn the surplus, if any, over to the plaintiff, “ in satisfaction of her dower rights in the above-mentioned real estate,” makes it very manifest that [482] tbe intention was that sbe should be barred of her dower in all the lands he so conveyed under the power of attorney. Since the power to Williams to sell and convey for the-purposes mentioned in the instrument was unlimited therein, we perceive no good reason why the sale and conveyance-directly to the defendant in consummation of that purpose should be held invalid merely because the sale and conveyance was not made • to a stranger for cash and then the cash paid to the defendant. The question presented is one of the power of the attorney to sell and convey, and not the power of the defendant to take by grant. The power of the defendant to accept such conveyance in satisfaction of its claim would seem to be too plain for argument. We perceive no error in the record. By the Court.— The judgment of the circuit court is affirmed.